" 


LIBRARY 

OF  THE 

University  of  California, 


GIF^T  OF^ 


Class 


A 


Phases  of  Royal  Government 
in  New  York  1691-1719 


A   DISSERTATION 

SUBMITTED    IN    PARTIAL    FULFILMENT    OF   THE    REQUIREMENTS 

FOR    THE 

DEGREE    OF   DOCTOR   OF   PHILOSOPHY 

IN 

COLUMBIA    UNIVERSITY 


By 
CHARLES   WORTHEN   SPENCER 

SOMETIME    UNIVERSITY    FELLOW    IN    AMERICAN    HISTORY, 

IN    COLUMBIA    UNIVERSITY, 

PROFESSOR    OF    HISTORY,    COLGATE   UNIVERSITY 


COLUMBUS,    OHIO 

Press  of  Fred.  J.  Heer 

1905 


v^^^ 


TABLE  OF  CONTENTS. 

PAGE 

Chapter      I.     Introduction 5 

Chapter     II.     The  Executive  Official   System 12 

Chapter  III.     The  Legislature    58 

Chapter  IV.     Financial  Affairs  before  1701) 97 

Chapter    V.     The  Revenue  Controversy,  1709-1717 129 

Bibliographical   Note    . .. 156 

(3) 


CHAPTER  I.     INTRODUCTION. 

As  a  royal  province  in  the  British  empire  in  the  eighteenth 
century,  New  York  weU  iUustrates  the  duahty  of  poHtical  exist- 
ence characteristic  of  such  a  community.  It  was,  on  the  one 
hand,  a  province  with  its  own  local  interests  to  be  respected  and 
developed,  its  peculiar  history,  and  its  own  local  consciousness 
of  these  as  features  of  identity.  It  was,  equally,  on  the  other 
hand,  a  part  of  the  British  empire,  with  its  share  of  the  benefits 
and  burdens  attaching  to  that  relation.  The  ideal  of  empire, 
probably  only  vaguely  before  the  mind  of  the  British  government 
at  that  time,  provided  for  co-operation  and  interaction  between 
these  two  aspects  of  provincial  existence,  which,  while  always 
emphasizing  imperial  welfare,  yet  sought  to  achieve  that  welfare 
by  development  of  the  peculiar  situation  of  the  province.  For 
example,  provincial  policy  in  the  matter  of  Indian  relations  illus- 
trates v/ith  peculiar  felicity  this  duality  of  existence.  Upon  main- 
tenance of  the  friendly  relations  with  the  Iroquois,  inherited 
from  the  Dutch,  depended,  not  alone  the  fur-trade,  but  the  very 
existence  of  the  province.  Experience  developed  the  fact  that, 
owing  to  the  peculiar  position  of  the  Five  Nations  among  the 
native  races  of  the  continent,  this  Iroquois  alliance  was  the  key 
to  the  Indian  policy  of  all  the  continental  English  communities 
taken  together.  Successful  administration  of  this  problem  re- 
quired recognition  of  both  local  and  general  aspects  and  the  elab- 
oration of  a  line  of  conduct  which  should  make  the  two  aspects 
serve  each  other. 

It  was  the  unique  task  of  the  governor  of  such  a  province 
to  blend,  in  his  actual  conduct  of  public  affairs,  these  two  aspects 
of  provincial  existence.  In  theory,  he  was  the  governmental 
head  of  the  community,  and,  at  the  same  time,  the  crown's  agent 
in  this  particular  unit  of  the  administrative  system  of  a  general 
imperial  policy.  In  theory,  also,  the  organization  of  the  legis- 
lature provided  simply  for  assistance  to  the  governor  in  the 
execution  of  his  dual  function  by  representatives  of  the  com- 
munity at  large.  Actually,  however,  as  described  in  Chapter 
II.,  the  organization  and  relations  of  the  executive  official  system 

(5) 


6  PHASES    OF    ROYAL    GOVERNMENT 

made  it  far  more  easily  and  characteristically  the  exponent  of 
the  policy  of  the  imperial  government  than  of  the  local  interests 
of  the  province.  Similarly,  the  legislature  became,  in  practice, 
the  exponent  of  local-provincial  feeling  and  policy,  rather  than 
of  any  attempt  to  embody  this  with  general  imperial  interest  in 
the  conduct  of  public  affairs. 

It  is  obvious  that  the  realization  of  the  ideal  of  co-operation 
and  supplementation  of  these  two  aspects  of  provincial  existence 
would  be  difficult.  As  in  the  case  of  the  Holy  Roman  Empire 
successful  working  required  mutual  confidence  on  the  part  of  the 
two  elements,  Vv^hich  was  seldom  realized ;  so,  in  this  case,  the 
relation  between  executive  and  legislature  vv^as  seldom  for  any 
long  period  one  of  mutual  understanding  and  intelligent  co- 
operation. There  were  certain  circumstances  in  particular,  act- 
ing as  obstructions  in  the  path  of  the  realization  of  the  ideal, 
which  may  be  mentioned.  The  imperial  administration,  on  the 
one  hand,  awkward  and  lumbering  under  the  best  of  circum- 
stances, failed  to  exercise  the  requisite  care  in  the  delicate  matter 
of  appointment  to  the  governorship.  Court  influences  resulted 
in  the  appointment  of  adventurers  like  Fletcher  and  Cornbury. 
Even  when  pains  were  taken  to  select  a  man  on  the  basis  of  the 
particular  needs  of  the  situation  from  the  government  point  of 
view,  the  result  might  not  be  the  choice  of  a  man  with  the  right 
sort  of  skill.  This  was  true  in  the  case  of  the  Bellomont  appoint- 
ment. Even  in  the  case  of  what  was,  in  its  results,  the  nearest 
to  an  ideal  appointment  —  that  of  Hunter  —  efficient  support 
from  home  could  not  be  relied  upon  by  the  appointee.  Circum- 
stances of  local  character  in  the  province,  on  the  other  hand,  wer< 
equally  an  obstruction  to  the  attainment  of  the  ideal.  In  the 
first  place,  the  heat  of  factious  passion,  coming  over  from  tin. 
Leisler  affair,  caused  popular  attention  and  interest  to  center 
more  on  measures  bringing  triumph  to  one  or  other  of  the  local 
factions  than  on  issues  of  truly  public  policy.  Then,  too,  outside 
the  realm  of  Leislerian  or  Anti-Leislerian  politics,  the  men  of 
leading  calibre  were,  as  a  class,  characterized  more  by  selfish 
ambition  for  the  interests  of  a  group  of  local  magnates  and  their 
dependents,  than  by  intelligent  appreciation  of  the  true  relations 
of  local-provincial  and  general-imperial  interests. 

The  actual  interworking  of  all  these  features,  during  the 
first  twenty  years  after   1691,  was  such  that  we  may  say  that 


IN    NEW    YORK,     169I-I719.  7 

during  all  this  time  there  was  no  effective  opportunity  for  the 
realization  of  the  possibilities  contained  in  the  theory  of  the  Royal 
Province.  Not  until  experience  had  brought  the  province 
through  a  period  of  developing  education,  and  fortune  had 
brought  to.  the  governorship  a  man  having  both  an  intelligent 
conception  of  the  ideal,  and — what  was  equally  important — the 
personal  temperament  and  political  skill  capable  of  making  an 
impression  on  the  actual  conduct  of  affairs,  was  a  sound  basis 
of  political  development  reached. 

The  four  months  of  Sloughter's  administration  served  merely 
to  commit  the  newly  established  government  to  the  policy  of  perse- 
cuting the  leaders  of  the  Leislerian  regime.  Whatever  may  be 
the  degree  of  truth  in  Smith's  violently  hostile  characterization 
of  Sloughter,  he  certainly  was  not  a  person  of  the  strength  of 
character  required  to  settle  the  government  in  a  community  torn 
with  faction  as  was  New  York.  Ingoldsby's  administration  of 
fourteen  months  was,  in  main  outline,  a  continuation  of  the 
regime  inaugurated  under  Sloughter's  auspices'  by  those  who 
had  played  the  part  of  victims  during  Leisler's  rule.  Ingoldsby's 
administration  illustrated  the  characteristics  of  periods  happen- 
ing with  unfortunate  frequency  during  New  York's  early  exist- 
ence as  a  royal  province,  viz.,  the  intervals  between  the  death, 
removal  or  long  absence  of  a  governor,  and  his  return  or  the 
arrival  of  the  next  incumbent.  Under  such  circumstances,  there 
was  likely  to  be  either  a  suspension  of  the  more  active  and 
aggressive  features  of  provincial  development,  with  surreptitious 
exploitation  of  opportunities  for  private  gain,  such  as  corrupt 
dealings  in  land  grants,  or  a  violent  use  of  governmental  ma- 
chinery, made  unscrupulous  by  a  consciousness  of  desperation 
such  as  is  illustrated  in  the  last  weeks  of  Nanfan's  power.  In- 
oldsby's  term,  in  1691-1692,  illustrates  the  former  group  of  activ 
ities,  which  served  almost  as  well  as  the  other  type  of  proceedings 
to  hinder  the  normal  development  of  the  possibilities  of  interac- 
tion between  the  two  aspects  of  provincial  existence. 

The  administration  of  Fletcher,  from  1692  to  1698,  did  little 
to  improve  the  situation.  Important  elements  of  the  imperial 
system  were  perverted  for  corrupt  purposes.  The  system  of 
connivance  at  violations  of  the  imperial  trade  system  enriched 
a  few  New  Yorkers  at  the  expense  of  the  ideal  of  the  empire. 
Extravagant  grants  of  land  to  a  few  favorites  endangered  Indian 


8  PHASES    OF    ROYAL    GOVERNMENT 

relations  and  retarded  the  development  and  peopling  of  the  prov- 
ince for  many  years  to  come.  The  circumstances  of  war  on  the 
frontiers  necessitated  activity  in  those  departments  of  the  imperial 
and  provincial  systems  which  bore  on  military  matters,  but  the 
actual  conduct  of  these  affairs  did  little  to  promote  the  spirit 
of  co-operation.  Fletcher's  conduct  of  hostilities  was  energetic, 
but  unskilful  and  wasteful.  The  heavy  burdens  of  taxation  and 
detachments  of  militia  for  frontier  service  were  not  rendered 
lighter  by  the  conviction  on  the  part  of  many  that  the  governor's 
arrogance  and  lack  of  tact  were  responsible  for  the  disobedience 
of  the  neighboring  provinces  to  the  direction  from  England  that 
they  should  be  aiding  and  assisting  to  New  York.  The  home 
government  itself  was  hard  pressed  and  could  render  little  effect- 
ive aid.  Then,  Fletcher's  attitude  in  matters  of  local  partisan- 
ship was  practically  a  continuation  of  the  Anti-Leislerian  course 
pursued  by  the  government  since  Sloughter's  arrival.  This  com- 
plicated the  relations  between  governor  and  assembly  in  the  mat- 
ter of  raising  supplies  for  military  purposes.  Altogether,  these 
were  not  favorable  circumstances  for  the  development  of  the 
ideal  of  co-operation  between  the  local  and  imperial  aspects  of 
provincial  life. 

Bellomont's  arrival  inaugurated  a  veritable  revolution  in  the 
course  of  affairs.  He  threw  himself  vigorously  into  the  task 
of  the  suppression  of  piracy,  in  so  far  as  New  York  was  con- 
cerned therewith.  He  put  into  practice,  as  it  was  intended  to  be 
used,  the  system  of  penalties  for  violations  of  the  acts  of  trade 
and  navigation.  In  other  words,  the  imperial  trade  system,  with 
all  the  machinery  that  that  involved,  began  to  have  eft'ective 
operation  in  New  York  for  the  first  time.  Bellomont  was  very 
active  in  attempts  at  development  of  the  positive  aspect  of  the 
imperial  trade  system,  and  expended  much  energy  in  devising 
ways  and  means  for  inaugurating  the  naval  stores  policy  in 
New  York.  It  was  impossible  for  him  to  develop  the  crown's 
landed  estate  on  account  of  Fletcher's  misconduct,  but  all  his 
efforts  went  towards  correcting  and  undoing  as  far  as  possible 
that  official's  mischief.  But  in  all  this,  as  in  other  matters,  the 
complication  of  local  partisan  politics  exercised  a  baleful  influ- 
ence. Fletcher  and  Cornbury  went  through  the  motions  of  a 
zeal  for  the  empire,  which,  practically,  as  events  worked  out, 
meant    a    zeal    for    the    personal    welfare    of    themselves    and  a 


IN    NEW    YORK,     169I-I719.  9 

favored  group  of  magnates  whose  provincial  interests  made  po- 
litical influence  with  the  government  necessary  to  them.  In  the 
case  of  Bellomont  we  have  a  genuine  zeal  for  imperial  interests, 
intelligently  conceived  and  impartially  administered,  as  far  as 
"graft"  is  concerned.  But  the  circumstances  of  his  accession  and 
the  circumstances  of  the  province  combined  to  make  the  spirit  of 
partisanship  in  the  assembly  and  in  the  subordinate  executive  ser- 
vice too  much  for  him  to  control.  Long  before  he  came  to  the 
province  it  was  known  that  he  was  enthusiastically  of  the  opinion 
that  the  Leislerian  cause  and  party  had  been  shamefully  treated. 
So  much  of  his  activity  on  arriving  in  the  province  was  of  the  neg- 
ative kind  —  undoing  mischief  and  punishing  wrong-doers  —  and 
he  made  it  such  a  personal  affair  with  Fletcher  that,  with  a 
people  of  provincial  character,  he  could  hardly  avoid  presenting 
the  appearance  of  being  chief  of  the  Leislerian  faction.  This, 
of  course,  awakened  into  well-nigh'  ungovernable  activity  the 
revengeful  zeal  of  the  friends  of  Leisler.  Bellomont  had  his 
hands  full,  even  when  he  was  in  the  province,  in  keeping  a  decent 
peace.  When,  then,  death  removed  the  only  member  of  the  gov- 
ernment whose  authority  and  personality  was  sufficient  to  hold 
passions  in  leash,  the  violence  of  the  long-repressed  Leislerians 
knew  no  bounds.  The  debauch  of  vindictive  passion  under  the 
administration  of  Nanfan,  of  which  the  Bayard  and  Hutchins 
trial  and  the  confiscation  of  Robert  Livingston's  estate  are  the 
most  conspicuous  manifestations,  is  a  measure  for  us  of  Bello- 
mont's  real  service.  From  some  points  of  view  it  seems  as  if 
Bellomont's  administration  was  too  short  to  amount  to  anything 
as  an  object-lesson  of  what  royal  provincial  government  might 
be.  But  the  odds  against  success  in  this  attempt  were  heavy. 
The  division  of  his  attention  between  three  governments,  lack 
of  the  most  efficient  support  from  home,  the  excessive  rage 
of  passions,  for  a  part  of  which  he  was,  for  personal  reasons, 
unwittingly  and  inevitably  responsible,  militated  strongly  against 
the  success  of  his  administration.  Hard-won  progress  was 
made  towards  giving  the  theory  of  the  empire  a  chance.  But 
the  province  needed  more  experience  to  make  this  beginning 
fruitful. 

Up  to  the  time  of  Bellomont's  death,  it  may  be  said  that  the 
exponents  of  the  general-imperial  aspect  of  provincial  life  had 
been  more  conspicuous,  had  been  more  bold  in  grasp  and  initia- 


lO  PHASES    OF    ROYAL    GOVERNMENT 

tive.  This  was  natural.  The  assembly  was  new  to  its  work. 
The  circumstances  of  war  complicated  development.  Nanfan's 
administration  from  1701  to  1702,  taken  as  the  outspoken  and 
unrestrained  expression  of  what  was  present  but  suppressed 
under  Belloihont,  is  the  time  when  local  provincial  forces  get 
gthe  upper  hand.  This  period,  discouraging  in  its  revelation  of 
possibilities,  is  not  to  be  taken  as  fairly  representing  what  was 
truly  characteristic  of  provincial  life,  any  more  than  Fletcher's 
administration  is  to  be  taken  as  an  exemplification  of  the  im- 
perial theory.  In  fact,  the  features  of  excessive  violence  may 
be  regarded  as  the  consequences  of  the  exasperation  resulting 
from  the  Sloughter  and  Fletcher  regimes,  and  the  escape  from 
utter  wrecking  of  the  imperial  machinery,  v^hich  even  the  most 
violent  Leislerians  recognized  as  out  of  the  question  as  a  matter 
of  expediency,  may  be  regarded  as  due  to  Bellomont. 

The  promise  of  better  things,  vaguely  felt  as  expressed  in 
the  appointment  of  Cornbury,  came  to  nothing.  His  relationship 
to  the  queen  and  his  ''interest''  at  court  flattered  the  New 
Yorkers'  sense  of  imiportance.  But  experience  soon  developed 
to  the  eyes  of  the  knot  of  magnates,  who  were  the  real  springs 
of  power  in  the  province,  that  for  their  purposes  he  was  worse 
than  Fletcher  and  Bellomont.  We  may  indeed  suppose  that  'this 
group  of  leading  individuals,  standing,  really,  midway  between 
popular  feeling  in  general  and  the  particular  designs  of  the  em- 
pire for  the  province,  had  themselves  grown  into  slightly  larger- 
minded  conceptions  of  the  interest  of  the  province.  Still  they 
looked  upon  public  policy  with  a  view  in  which  their  personal 
interests  bulked  most  conspicuously.  For  their  purpose,  a  gov- 
ernor must  manage  to  keep  just  enough  in  favor  with  the  home 
government  to  keep  his  place,  and  must  equally  escape  alienating 
popular  provincial  favor  so  as  to  avoid  frittering  away  his  energy 
in  fruitless  quarrels  with  the  popular  element  —  fruitless,  that 
is,  to  their  schemes.  The  great  service  rendered  by  Cornbury 's 
administration  to  the  development  of  New  York  as  a  royal  prov- 
ince Avas  the  fact  that  he  lost  estimation  both  with  the  people 
of  the  province  and  with  the  local  magnates,  and  thus  compelled 
a  measure  of  union  among  all  elements  for  a  common  public  end. 
This  union  against  Cornbury's  aim  to  make  both  imperial  and 
provincial  interests  serve  his  personal  ends  was  finally  successful. 
But   another   short   term   of   office  —  that   of    Lovelace   for   six 


IN    NEW    YORK,     169I-I719.  II 

months  —  and  another  interval  of  government  by  a  figure-head 
—  Ingoldsby,  again,  for  thirteen  months  —  intervened  before  the 
arrival  of  a  governor  adequate  to  the  task  before  him. 

In  Hunter  we  have  the  first  governor  whose  administration 
displayed  not  only  intelligent  zeal  for  the  empire  and  sympa- 
thetic appreciation  of  the  situation  of  the  provincials,  but  also 
the  ability  to  relate  these  two  features  in  the  actual  conduct  of 
affairs. 

Full  description  of  these  successive  administrations  and  of 
Hunter's  career, in  New  York  would  be  an  extensive  task,  requir- 
ing for  its  satisfactory  achievement  materials  not  at  present 
accessible.  It  would  practically  constitute  a  political  history  of 
the  province  during  its  first  stage  of  royal  provincial  existence. 
It  is  one  of  the  purposes  of  this  sketch  rather  to  describe  as 
carefully  as  may  be  the  two  elements  of  the  governmental  system, 
representing  respectively  the  general-imperial  and  the  local-pro- 
vincial aspects  of  New  York,  as  they  actually  developed  during 
the  period  from  1691  to  the  close  of  Hunter's  administration. 
Chapters  II.  and  III.  are  concerned  with  this  description.  These 
chronological  limits  are  chosen  because  this  was  the  period  during 
which  were  elaborated  the  main  outlines  of  the  system  and  the 
more  or  less  permanent  methods  of  control,  of  that  which  has 
always  been  fundamental  in  English  political  development,  viz., 
the  power  of  the  purse.  Throughout  all  the  manifestations  of 
social  and  public  life  in  the  province,  there  was,  to  an  extent,  a 
general  contest  between  provincial  and  imperial  ideals.  The 
essentially  fundamental  relation  of  financial,  to  all  other  ques- 
tions, gives  particular  importance  to  the  development  of  the 
contest  between  these  ideals  in  the  matter  of  control  over  raising 
and  spending  public  money.  In  chapters  IV.  and  V.  an  endeavor 
is  made  to  trace  the  story  of  this  development.  The  elaboration 
of  this  financial  system  and  the  application  of  the  results  of  the 
controversy  over  the  matter  to  the  general  conduct  of  provincial 
affairs,  in  a  way,  make  up  the  first  stage  of  the  existence  of  New 
York  as  a  royal  province. 


CHAPTER  II.     THE  EXECUTIVE  OFFICIAL  SYSTEM. 

hi  the  original  constitution  of  government  in  the  province 
'of  New  York,  after  its  organization  by  the  government  of  Wil- 
liam and  Mary,  the  executive  held  a  position  of  especial  advan- 
tage and,  at  first,  at  any  rate,  of  power.  The  newly  established  as- 
sembly took  some  time  in  learning  its  position  and  possible 
power,  and  a  struggle  for  vantage  ground  preceded  its  engage- 
ment in  the  struggle  for  the  dominating  position  in  the  provincial 
government  which  it  afterward  attained.  And  in  the  executive 
department  the  governor  was  easily  the  dominating  figure.  There 
were  other  executive  officials,  holding  office  by  patent  from  the 
crown  and  having  functions  important  in  provincial  and  impe- 
rial life.  The  executive  aspect  of  the  functions  of  the  council 
was  also  of  great  importance.  Nevertheless  the  relations  between 
the  governor  and  these  officials  and  the  council  were  such  that, 
in  the  last  analysis,  it  was  the  character  and  aims  of  the  individ- 
ual who  held  the  office  of  governor  that  determined  the  com- 
plexion of  the  administration  of  public  affairs  in  the  province. 

With  this  view  of  the  importance  of  the  governor,  the  cir- 
cumstances surrounding  appointment  to  an  office  of  so  great 
possibilities  come  to  be  of  interest.  The  appointment  was  made 
by  the  King  in  Council,  the  name  of  the  appointee  v/as  then  sig- 
nified by  the  Principal  Secretary  of  State,  who  was  at  the  time  in 
charge  of  colonial  affairs,  to  the  Board  of  Trade,  and  at  the  same 
tim.e  the  latter  were  desired  to  prepare  a  commission  and  a  set 
of  instructions.  The  influences  actually  having  weight  in  the 
selection  of  individuals  for  this  important  office  are  not  easy  to 
determine.  Authoritative  information  on  the  subject  is  scanty 
and  fragmentary  and  yields  only  negative  results  to  the  search 
for  light  on  the  workings  of  the  imperial  system  at  this  period. 

It  v/ould  appear  that,  whether  solicited  or  not,  the  crown  did 
not  lack  for  intimations  from  interested  parties,  at  any  rate  as 
to  the  qualities  desired  in  an  appointee.  Thus,  in  1689  we  find  a 
petition  to  the  king  from  twenty-one  merchants  trading  to  and 
in  New  York,  expressing  to  the  king  satisfaction  in  the  appoint- 
ment of  Sloughter,  calling  attention  to  the  strategic  position  of 

(12) 


IN    NEW    YORK,     169I-I719.  I3 

New  York  and  desiring  that  some  military  force  and  equipment 
be  sent  out  with  the  new  governor.^  In  1701,  after  the  death  of 
Bellomont,  we  find  Robert  Livingston  in  a  long  communication 
to  the  Board  of  Trade  mentioning  as  among  the  things  necessary 
at  that  time  for  the  preservation  of  the  province,  "that  a  governor 
be  appointed  who  is  a  soldier,  a  man  fearing  God  and  hating 
covetousness  and  who  will  administer  impartially  without  sid- 
ing with  any  faction."-  Again,  in  1708,  we  find  Lewis  Morris 
writing  to  the  Secretary  of  State  in  terms  of  the  greatest 
freedom  as  to  the  "impudent  conduct  of  the  Governors,  to  call 
it  no  worse,  that  has  been  the  great  prejudice  of  her  Majesty's 
service  in  America ;"  adding,  "We  are  told  Sir  Gilbert  Heathcote 
has  made  some  interest  for  his  brother.  Coll.  Caleb  Heathcote; 
he  will  be  a  man  to  the  general  satisfaction  of  ye  people,  and  at 
this  juncture  to  obteine  a  resetlement  of  her  Ma j -ties  revenue  no 
man  fitter.  I  know  no  man  understands  the  Province  or  People 
better,  or  is  more  capable  of  doing  her  Majestic  reall  service.  He 
is  an  honest  man  and  the  reverse  of  my  Lord  Cornbury."* 
Whether  either  of  these  latter  communications,  or  their  substance, 
ever  came  to  the  knowledge  of  the  sovereign  is  of  course  impos- 
sible to  determine.  Certainly  Cornbury  was  as  far  as  it  is  possi- 
ble to  conceive  from  the  ideal  figure  sketched  by  Livingston  and 
the  appointment  of  Lovelace  would  at  best  indicate  that  military 
qualities  at  that  junctur^  were  considered  more  important  than 
thorouTli  understanding  of  the  province  and  people. 

The  appointment  of  Bellomont,  an  appointment  as  to. which 
we  h^ve  more  than  the  usual  amount  of  evidence  concei^ning 
the  crown's  specific  purpose,  and  upon  which,  apparently,  unusual 
care  was  expended  in  consideration  of  the  quaj-rties  ol,Hi-e  appoin- 
tee, reflected  the  disposition  to  consider  more  the  ifterests  of  the 
trading  empire  at  large  than  the  exceedingly  peculiar  local  situ- 
ation in  New  York.  At  tliait  time  t?he  quality  of  impartiality  men- 
tioned in  Livingston's  requirements  was  quite  as  necessary  as  in 
1 70 1,  and  in  this  particular^Bellomont  was  deficient,  at  any  rate 
in  any  efifective  degree,  and  his  predilection  for  the  cause  of  one 

'  Col.  Doc.  III.  651.      .   * 
^'Ibid.  IV.  878. 
'  Ibid.  V.  37-8. 


14  PHASES    OF    ROYAL    GOVERNMENT 

of  the  factions  in  the  province  had  been  matter  of  pubUc  knowl- 
edge before  his  appointment..^ 

In  the  case  of  Fletcher,  (1692-1698),  we  have  his  own  asser- 
tion in  his  defence  against  charges  of  corruption,  that  "in  the 
§Irish  Warr"  and  in  his  thirty  years  of  service  preceding  he  was 
"so  far  from  making  gaine  by  the  misfortunes  of  our  friends  that 
I  never  did  it  from  the  ruine  of  our  enemies  and  it  was  I  presume 
the  report  of  this  behaviour  that  sent  me  into  New  York  for  I 
had  never  thought  of  the  place  till  the  moment  it  was  proposed 
to  me  and  my  answer  required."^  We  have  no  more  than  his 
own  assertion  for  these  points,  however,  and  in  the  reply  made 
to  this  defence  of  Fletcher's,  we  have  a  hint  as  to  forces  that 
were  reputed  to  have  great  weight  in  the  making  of  all  these 
appointments.  It  was  asserted  that,  so  far  as  misfortunes  in 
Ireland  were  concerned,  Bellomont  had  suffered  more  in  this  par- 
ticular "from  that  power  that  preferred  and  advanced  Col. 
Fletcher,"  and  that,  too,  at  a  time  when  Fletcher  was  not  disturbed 
in  his  patrimony."  As  to  Fletcher's  need  for  the  exercise  of  favor 
from  some  quarter,  we  have  the  testimony  of  William  Penn  to 
the  fact  of  his  being  "a  necessitous  man,"  of  whom  it  was  to 
be  feared  that  he  would  "more  consider  the  advancement  of  his 
own  private  fortunes  than  the  public  benefit  of  the  Province."* 
The  disposition  to  explain  the  influences  determining  ap- 
pointments in  terms  of  other  things  than  personal  fitness  is  re- 
flected all  through  William  Smith's  "History  of  New  York." 
Thus  in  the  case  of  Sloughter's  appointment  he  remarks  that  a 
governor  never  was  more  necessary  for  reconciling  a  divided 
people  as  well  as  for  defending  them;  "But  either  through  the 
hurry  of  the  King's  affairs  or  the  powerful  interest  of  a  favorite 
a  man  was  sent  over  utterly  destitute  of  every  qualification  for 
government."^     In  like  manner,  Smith  describes  Cornbury's  early 

^  "The  King  did  him  the  honor  to  say  that  he  thought  him  a  man 
of  resolution  and  integrity,  and  with  these  qualities  more  likely  than  any 
other  he  could  think  of,  to  put  a  stop  to  the.  growth  of  piracy."  Smith, 
History  of  New  York,  p.  150. 

""  Col.  Doc.  IV.  445. 

'Ibid.  IV.  458. 

*Ibid.  IV.  221. 

^  Smith,  p.  122.  Colden's  estimate  of  the  reliabilit>  of  Smith's  char- 
acterizations of  governors  was  very  low.  Smith's  defects  in  this  regard 
being  ascribed  to  "force  of  early  prejudice —  a  narrow  education,  a  weak 


IN    NEW    YORK,     169I-I719.  I5 

desertion  of  James  II.  for  William,  and  adds,  "King  William  in 
gratitude  for  his  services  gave  him  a  commission  for  this  gov- 
ernment."^ 

The  appointment  of  Hunter  is  the  most  interesting  of  all, 
for,  though  he  proved  to  be  the  best  governor  New  York  ever 
had,  there  seems  to  be  no  evidence  that  there  was  anything  more 
in  this  case  than  the  bestowal  of  a  place  on  a  favorite,  this  time 
happening  to  be  a  man  well  qualified  for  his  post.  Smith  men- 
tions his  acquaintance  with  Addison  and  others  and  hazards  the 
suggestion  that  it  was  "by  their  interest  that  he  was  advanced 
to  this  profitable  place. "^  Colden  in  his  Letters  on  Smith's  "His- 
tory" mentions  Hunter's  membership  in  the  guard  of  honor  of  the 
Princess  Anne  when  she  retired  from  her  father's  court,  his  ser- 
vice in  William's  and  Anne's  army  till  after  Ramillies,  his  com- 
mission as  governor  of  Virginia,  obtained  through  "friends  in 
Queen  Anne's  Court,"  and,  further,  names  Dr.  Arbuthnot,  the 
queen's  favorite  physician,  as  the  court  influence  behind  Hunter. 
"The  Duke  of  Marlborough's  influence  over  the  Queen  began 
about  this  time  to  lessen,  and  Dr.  Arbuthnot  prevailed  with  the 
Queen  to  name  Mr.  Hunter  for  the  government  of  Jamaica  which 
happened  to  be  vacant  without  consulting  her  Ministry  who  had 
designed  that  government  for  another,  but  Mr.  Hunter  being 
apprehensive  that  if  he  went  to  Jamaica  against  the  inclinations 
of  the  ministry  he  would  be  made  uneasy  in  his  government  and 
the  government  of  New  York  becoming  vacant  at  this  time  by 
the  death  of  Lord  Lovelace,  the  Ministers  were  willing  that  he 
should  have  the  Government  of  New  York,  therefor  Mr.  Hunter 
desired  his  friends  to  inform  the  Queen  that  he  would  rather 
have  the  government  of  New  York  than  Jamaica,  and  it  was 
accordingly  granted  him."^  An  undoubted  instance  in  eighteenth 
century  English  politics  of  "something  equally  as  good" ! 


judgement  and  a  stubborn  temper  of  mind"  (N.  Y.  Hist.  Soc.  Colls.,  1869, 
p.  207).  It  is  not  necessary  to  agree  with  Colden  in  this  opinion  of 
Smith,  but,  apart  from  the  general  tiuestion,  it  is  to  be  observed  that 
upon  the  point  of  reasons  leading  to  the  appointment  Smith  would 
probably  be  simply  recording  what  was  matter  of  general  impression  in 
N.  Y.  at  the  time  and.  so  far  as  this  goes,  his  serviceability  is  hardly  to 
be  impeached. 

'Smith,  p.   169. 

'Ibid.   199. 

'  N.  Y.  Hist.  Soc.  Colls.  1868,  p.  196. 


l6  Pi  i  ASKS    OF    ROYAL    GOVERNMENT 

During  the  period  under  consideration,  three  of  the  gov- 
ernol-s  were  members  of  the  nobihty  —  Richard,  Earl  of  Bello- 
mont,  Edward,  Viscount  Cornbury,  and  John,  Lord  Lovelace, 
Baron  of  Hurley ;  three  were  soldiers  —  Colonels  Sloughter  and 
^Fletcher,  and  Brigadier  Hunter.  None  were  natives  of  New 
York  or  persons  with  previous  experience  in  any  practical  way 
with  the  affairs  of  the  dependencies.  All  but  one,  Sloughter, 
were  governors  of  other  provinces  at  the  same  time  with  their 
incumbency  in  New  York;  Fletcher,  of  Pennsylvania,  from  26 
October,  1692,  to  20  August,  1694;  Bellomont,  throughout  his 
incumbency,  of  Massachusetts  and  New  Hampshire:  Cornbury, 
Lovelace  and  Hunter,  of  New^  Jersey.  It  does  not  appear  that  this 
circumstance  of  a  double  government  was  regarded  in  New  York 
as  of  very  serious  importance  except  in  the  case  of  Bellomont, 
who  was  absent  from  New  York  for  nearly  a  year  out  of  his  three 
years  of  residence  in  America.  At  this  time  a  petition  of  thirty- 
three  New  York  merchants  was  preferred  to  the  king,  alleging 
that  the  strictness  of  Bellomont's  instructions  to  the  lieutenant 
governor  during  his  (Bellomont's)  absence  acted  as  a  great  hind- 
rance to  justice,  trade  and  industry  without  any  advantage  to 
other  subjects  or  to  the  king,  and  praying  that  the  province  be 
restored  to  "its  former  manner  of  administration  unconcerned 
with  the  Governor  of  any  other  place. "^  This  should  probably 
be  interpreted,  however,  as  a  part  of  the  general  mercantile  hos- 
tility to  Bellomont  rather  than  as  a  serious  complaint  on  this 
point  as  a  specific  grievance.  As  to  the  connection  with  New 
Jersey,  no  complaint  appears  from  any  quarter  in  New  York, 
and  there  would  seem  to  be  little  reason  for  any,  for  the  gov- 
ernor's absences  in  that  province  were  only  for  the  purpose  of 
meeting  the  assembly  there  and  the  sessions  rarely  consumed 
more  than  seven  or  eight  weeks  out  of  the  year.  In  1709  the 
point  was  raised,  whether  orders  concerning  New  York  given  by 
the  governor  when  he  himself  was  in  New  Jersey  were  not  void. 
The  Board  of  Trade  gave  opinion  that  this  was  "groundless  and 
unreasonable  the  contrary  being  practised  every  Day  here  by  the 
Lords  Lieutenants  of  Counties  and  particularly  by  the  Lords 
Lieutenants  of  Ireland  who  frequently  send  orders  into  Ireland 
whilst  they  are  Resident  in  the  Kingdom."^ 

^Col.  Doc.  IV.  624. 
'Col.  Doc.  V.  155. 


IN    NEW    YORK,     169I-I719.  IJ 

The  tenure  of  office  by  the  governor  was  during  the  pleas- 
ure of  the  crown  and  the  powers  granted  by  the  commission  were 
to  be  exercised  immediately  upon  arrival  within  the  province, 
which  arrival,  followed  immediately  by  the  publication  of  the 
commission,  worked  the  determination  of  the  effectiveness  of  the 
commission  of  the  preceding  incumbent.^  It  might,  and  fre- 
quently did,  happen  that  some  time  elapsed  between  the  appoint- 
ment of  a  governor  and  the  exercise  by  him  of  the  powers  con- 
veyed by  his  commission.     Thus  : 

Sloughter — 'Commission  dated  14  November,  1689;  arrived 
in  New  York  19  March,  1691. 

Fletcher  —  Commission  dated  17  March,  1692;  arrived  in 
New  York  28  August,  1692. 

Bellomont-  —  Appointed  16  March,  1697 ;  arrived  2  April, 
1698. 

Cornbury  —  Appointed  13  June,  1701  ;  arrived  3  May,  1702. 

Lovelace  —  Appointed  28  March,  1708;  arrived  18  Decem- 
ber, 1708. 

Hunter  —  Appointed  9  September,  1709;  arrived  14  June, 
1710. 

During  the  period  from  1691  to  1720  the  frequency  with 
which  the  office  of  governor  changed  hands  undoubtedly  consti- 
tuted a  feature  of  weakness  in  the  imperial  system  of  colonial 
admisintration.^  Eleven  different  persons  administered  the  pow- 
ers of  the  governor's  commission  during  the  above-mentioned 
period,  of  whom  six  held  commissions  as  governor  and  six 
acted  ad  interim ;  one,  Ingoldsby,  as  commander-in-chief,  from 
27  July,  1691,  to  30  August,  1692,  and  as  lieutenant  governor 
from  6  May,  1709,  to  10  April,  1710;  one,  Nanfan,  as  lieutenant 
governor  from  20  May,  1701,  to  3  May,  1702;  and  two,  as  pres- 
ident of  the  council,  Beekman,  from  to  April,  17 10,  to  16  June, 
1710,  and  Schuyler,  from  July,  1719,  to  September,  1720.  There 
was  one  period  of  interregnum,  as  it  were.  On  the  death  of  Bel- 
lomont,  5   March,    1701,   the   lieutenant  governor,   Nanfan,   was 

'Col.  Doc.  IV.  272. 

"  Smith  (p.  149)  says  that  Bellomont  was  appointed  in  1695  but  the 
appointment  was  signified  to  the  Board  of  Trade  on  the  above  date.  Col. 
Doc.  IV.  261. 

^  Egerton :     A   Short   History  of   British  Colonial   Policy,  pp.   156-8. 


l8  PHASES    OF    ROYAL    GOVERNMENT 

on  leave  of  absence  in  Barbadoes.  Dispute  immediately  arose  as 
to  whether  powers  of  administration  devolved  upon  the  president 
of  the  council  or  upon  the  council  acting  by  a  majority  of  votes 
under  the  presidency  of  the  eldest  councilor.  The  violence  of 
the  spirit  of  faction  then  raging  in  the  province  caused  the  eldest 
^councilor,  William  Smith,  to  proceed  with  so  great  caution  that 
no  precedent  could  be  said  to  have  been  created  by  the  case,  the 
details  of  which  will  be  related  in  another  connection.  Fortun- 
ately no  outbreak  occurred^  and  the  arrival  of  Nanfan.  20  May, 
1 701,  put  an  end  to  an  extremely  awkward  situation.  Making 
no  distinction  between  governors  holding  ofiice  by  commission 
and  persons  administering  the  povv'-ers  of  the  commission  ad  in- 
terim, the  office  changed  hands  ten  times  between  1691  and  1720, 
and  the  average  term  was,  approximately,  two  years  and  a  half. 
It  is  to  be  noted  with  respect  to  this  average,  that  it  does  not  by 
any  means  tell  the  story.  The  terms  of  two  governors,  Sloughter 
and  Lovelace,  were  cut  very  short  by  death,  in  the  case  of  Slough- 
ter, after  four  months,  and  in  the  case  of  Lovelace,  after  six 
months,  of  office.  As  we  shall  see,  the  powers  of  a  lieutenant 
governor  or  a  president  of  the  council,  particularly  the  latter, 
were  of  a  somewhat  curtailed  character,  compared  with  those  of 
a  .crovernor ;  so  that  as  material  for  the  study  of  the  working  of 
the  imperial  system  under  normal  circumstances,  we  have  during 
this  period  only  the  administrations  of  Fletcher,  of  five  years  and 
a  half,  Bellomont,  nearly  three  years,  Cornbury,  five  years  and 
a  half,  and  Hunter,  a  little  over  nine  years. 

During  the  period  considered  two  governors  were  displaced, 
Fletcher  and  Cornbury.  It  is  difficult  to  find  any  very  reliable 
material  for  judgment  upon  the  standard  of  efficiency  required 
of  governors  in  their  tenure  of  office,  in  the  circumstances  of 
these  displacements.  Fletcher  made  a  great  deal  of  Shrewsbury's 
letter  recalling  him,  in  which  Fletcher  was  informed  that  *'it 
was  not  for  any  dissatisfaction  but  in  favor  of  the  Earl  of  Bello- 
mont," and  that  the  king  would  take  care  of  him  and  employ 
him  otherwise  for  the  future.^  It  does  not  appear  that  Fletcher 
ever  was  given  another  post,  and  his  administration  was  certainly 
subjected  to  very  close  and  suspicious  examination,  and,  in  sev- 
eral items,  described  as  "not  for  your  Majesty's  service,"  by  the 


'  Cal.  Treas.  Papers,  vol.  1697-1701-2,  p.  542 ;    Col.  Doc.  IV.  443. 


IN    NEW    YORK,     169I-I719.  I9 

Board  of  Trade. ^  This  was  after  a  series  of  hearings  by  the 
Board  upon  charges  against  Fletcher  covering  a  variety  of  sub- 
jects. Complaints  had  been  made  against  him  to  the  Board  in 
August  and  September,  1695,  by  Robert  Livingston,  charging 
him  with  refusal  to  account  to  the  assembly  for  disposal  of  pub- 
lic money  and  with  undue  influence  over  elections.^  Further 
complaints  were  entered  in  September,  1696,  by  Leisler  and 
Gouverneur,  for  partisanship  in  the  internal  factions  in  the  prov- 
ince, undue  influence  over  elections,  misapplications  of  money 
raised  by  the  assembly  and  of  money  sent  by  other  colonies  for 
defence,  defrauding  of  the  soldiers  of  the  independent  com- 
panies.^ Later  in  the  year,  in  December,  Penn  submitted  a  letter 
from  New  York,  dated  13  June,  1695,  which  he  said  he  had  kept 
by  him  for  eight  months,  "being  unwilling  to  concern  himself  in 
the  matters  —  chiefly  complaints  against  Colonel  Fletcher.  But 
however  he  thought  fit  in  the  end  to  discharge  his  hands  of  it." 
This  letter,  the  signature  of  which  was  cancelled,  was  from  Peter 
de  la  Noy,  a  prominent  Leislerian,  and  covered  the  same  subjects 
mentioned  above  and,  in  addition,  mentioned  the  matter  of 
Fletcher's  complicity  in  the  operations  of  New  York  pirates.* 
These  complaints,  with  Bellomont's  voluminous  correspondence 
upon  the  subject  of  Fletcher's  misdeeds,  formed  the  basis  of  the 
formal  charges,  which  covered  a  great  variety  of  subjects  —  pro- 
tection of  pirates,  exorbitant  grants  of  land,  connivance  at  illegal 
trade,  neglect  of  the  military  forces  and  of  fortifications,  illegal 
grant  of  letters  of  denization,  discourtesy  to  the  governor  of  Can- 
ada."'' Whether  these  evidences, of  inefficiency  or  improper  pro- 
cedure would  of  themselves  have  been  sufficient  to  secure  his  dis- 
missal, it  is  hard  to  say.  Both  Fletcher  and  Livingston  seem  each 
to  have  thought  himself  in  favor  with  the  Duke  of  Shrewsbury, 
and  the  letter  from  de  la  Noy  before  referred  to  speaks  of  the 
people's  "apprehension  of  his  (Fletcher's)  great  power  at  court." 
That  skilful  use  of  complaints  from  the  province,  coupled  with 
manipulation  of  court  influences,  was  considered  to  be  a  possible 
method  of  getting  rid  of  an  obnoxious  governor,  we  have  ample 


'Col.  Doc.  IV.  481. 
'Ibid.  IV.  127-30,  143-5. 
''Ibid.   IV.   212-16. 
*Ibid.  IV.  221-4. 
"  Ibid.  IV.  443. 


20  PHASES    OF    ROYAL    GOVERNMENT 

evidence.  Perhaps  the  best  example  is  the  case  of  Bellomont 
himself,  whose  activity  in  enforcing  the  acts  of  trade  and  in 
discountenancing  piracy  so  angered  the  merchants  of  New  York 
that  within  a  year  of  his  arrival  they  "raised  a  sum  of  money 
by  contribution,  which  they  have  sent  for  England,  therewith  to 
apply  privately  at  Court  to  get  the  Earl  removed."^  Apparently 
an  equally  important  part  of  the  scheme  was  to  influence  elec- 
tions to  the  assembly,  so  that  the  latter  would  refuse  to  renew 
the  revenue,  which  would  be  a  ''sure  means  to  ruin  the  Earl's 
interest  at  Court  and  get  him  quickly  called  home."^  This  plot 
was  fomented  from  England  by  Fletcher  after  his  return,  who 
wrote  to  his  New  York  friends  just  before  these  elections  that 
"his  affairs  were  in  a  very  prosperous  condition  at  the  Court  of 
England  and  that  he  made  no  manner  of  question  to  baffle  all  the 
accusations  sent  home  against  him."^  And  later,  in  1700,  we 
find  London  merchants  who  traded  to  New  York  representing  to 
the  Board  that  Bellomont  was  discouraging  lawful  trade  by  his 
mismanagement,  and  in  February,  1701,  petitioning  parliament 
for  redress  in  the  same  matter.*  The  question  whether  Fletcher 
should  be  recalled  actually  for  the  misconduct  indicated  in  the 
charges  was  probably  never  squarely  faced  by  the  imperial  ad- 
ministration. The  materials  for  the  charges  had  been  coming 
to  the  knowledge  of  the  "Lords  of  the  Committee"  for  nearly  a 
year  before  the  establishment  of  the  "Board  of  Trade,"  in  May, 
1696.  This  Board,  composed  for  the  most  part  of  men  without 
official  experience,  was  made  acquainted  in  a  still  more  compre- 
hensive way  with  the  complaints  against  Fletcher  in  August  and 
September,  1696,  and  in  their  representation  on  the  northern 
colonies  to  the  Lord  Justices,  30  September,  1696,  suggested,  for 
military  reasons,^  the  appointment  of  a  captain-general  for  the 
war,  to  command  all  regular  forces  and  the  militia  of  all  the 
colonies  on  the  continent,  this  captain-general  to  have  the  power 


'  Col.  Doc.  IV.  462. 

^bid.   IV.  508. 

*  Ibid. 

*Ibid.  IV.  604. 

'^  Possibly  on  the  basis  of  the  suggestion  of  Nelson,  a  Bostonian  who 
had  been  taken  prisoner  by  the  French  and  who  was  at  that  time  in 
England  on  parole.  Brooke  and  Nicolls  recommended  him  to  the  Board 
as  able  to  inform  them  very  particularly  on  the  strength  of  the  French 
in  Canada.     Col.  Doc.  IV.  186. 


IN    NEW    YORK,     169I-I719.  21 

of  governor  of  any  of  the  plantations  immediately  depending  on 
the  crown  while  present  in  it.^  It  was  after  this,  ii  December, 
1696,  that  the  information  concerning  Fletcher's  complicity  with 
pirates  seems  to  have  been  brought  to  the  attention  of  the  Board, 
who  notified  Fletcher  in  a  letter  of  i  February,  1697,  that  infor- 
mation had  reached  them  from  recent  trials  of  pirates  that  his 
government  was  reputed  to  offer  protections  to  pirates.^  In  their 
representation  to  the  king,  27  February,  1697,  the  Board  pre- 
sented the  matured  results  of  their  consideration  of  their  sugges- 
tion to  the  Lords  Justices  for  the  military  union  of  all  the  colonies. 
Their  proposition  now  took  the  form  of  a  governor  for  Mas- 
sachusetts, New  York  and  New  Hampshire,  with  chief  residence 
at  New  York  and  with  power  of  captain-general  in  those  prov- 
inces and  in  Connecticut,  Rhode  Island  and  the  Jersies.^  This 
was  followed  in  less  than  a  month  by  the  appointment  of  Bello- 
mont  to  the  position  whose  powers  had  thus  been  indicated.  It 
seems  probable  that  this  appointment  was  made  for  the  reasons 
which  had  had  weight  in  the  determination  to  carry  out  the 
above-mentioned  recommendation  of  the  Board,  the  importance 
of  the  position  requiring  a  man  of  greater  consequence  than 
Fletcher  could  possibly  be,  and  perhaps  in  view  also  of  the 
king's  high  opinion  of  Bellomont,  which  was  expressed  at  the 
time  of  his  appointment. 

There  are  some  circumstances  about  the  recall  of  Fletcher 
and  the  appointment  of  Bellomont  which  suggest  that  it  was 
an  early  case  of  securing  the  recall  of  an  obnoxious  governor 
through  the  medium  of  an  agency,  in  this  case  informally  con- 
stituted. It  was  noted  above  that  complaints  against  Fletcher 
were  brought  to  the  Board  in  August  and  September,  1696,  by 
Leisler  and  Gouverneur  at  just  about  the  time  that  Brooke  and 
Nicolls  as  agents  of  the  province  were  making  representations 
on  the  condition  of  the  province  with  reference  to  the  question  of 
defence.  Leisler  and  Gouverneur  were  the  natural  leaders  of  the 
Leislerian  party  in  New  York,  which  outnumbered  their  oppo- 
nents three  to  one,*  and  which  had  undoubtedly  been  discrim- 
inated against  ever  since  Sloughter's  arrival.     They  found  no 

'Col.  Doc.  IV.  228-9. 
'  Ibid.  IV.  255.  ' 
'Ibid.    IV.    259. 
*Ibid.  IV.  524. 


22  PHASES    OF    ROYAL    GOVERNMENT 

Opportunity  of  expressing  themselves  in  the  governmental  organ- 
ization of  the  province,  and  the  visit  of  Leisler  and  Gouverneur 
to  England  was  naturally  used  by  the  party  to  improve  its  gen- 
eral situation  in  every  possible  way.  Their  success  with  parlia- 
ment in  getting  the  attainder  of  the  elder  Leisler  reversed  natur- 
ally gave  them  the  greatest  encouragement  and  they  bitterly 
resented  the  appointment  of  Brooke  and  Nicolls  as  agents,  as- 
serting that  it  was  a  packed  assembly  that  voted  the  money  for 
the  agency,  that  the  agents  were  inveterate  Anti-Leislerians  sent 
.over  ostensibly  to  represent  the  state  of  the  province,  but  actually 
to  secure  the  ''interest"  of  Fletcher  and  the  Anti-Leislerians  at 
court,  etc.  Peter  de  la  Noy's  letter  to  Penn,  already  referred 
to,  shows  plainly  one  object  which  the  y\nti-Leislerians  hoped 
for,  viz.,  ''the  removall  of  this  man  and  we  are  not  sollicitous 
whether  he  is  gently  recalled  or  falls  into  disgrace,  so  we  are 
rid  of  him."^  But  in  view  of  all  the  circumstances  —  Fletcher's 
well-known  "interest"  at  court,  the  equally  obvious  fact  of  the 
success  of  the  Leislerian  campaign  in  other  high  official  quarters, 
the  inaction  of  the  administration  in  reference  to  the  serious 
matters  proved  at  the  hearings  of  the  charges  against  Fletcher, 
the  opportunity  to  ascribe  the  supersession  of  Fletcher  by  Bello- 
mont  to  military  exigencies  of  undoubtedly  pressing  character 

—  in  view  of  all  these  circumstances  —  it  seems  probable  that  the 
expressions  used  in  Shrewsbury's  letter  to  Fletcher  — "not  for 
dissatisfaction  with  him  but  in  favor  of  the  Earl  of  Bellomont" 

—  were  a  very  fair  description  of  the  situation. - 

In  the  case  of  Cornbury,  we  find  complaints  previous  to  his 
recall,  from  the  collector  and  receiver-general  in  the  province 
as  to  obstruction  from  the  governor  in  the  performance  of  his 
duties;^  from  the  lieutenant  governor,  that  the  governor  gave 
him  no  instructions  and  prevented  him  from  exercising  any 
power  either  in  New  York  or  New  Jersey;*  and  from  Lewis 
Morris  of  New  Jersey,  giving  a  detailed  account  of  partisanship 

'  Col.  Doc.  IV.  224. 

^  Chalmers  says,  "he  was  soon  after  recalled  partly  owing  to  com- 
plaints made  against  him,  but  more  with  design  to  make  room  for  a  new 
plan  of  union  of  the  Northern  Colonies,  on  which  the  safety  of  the 
whole  was   supposed  to  depend."     N.   Y.   Hist.   Soc.   Colls.   1868,  p.   149. 

*  Col.  Doc.  V.  28. 

*Ibid.  IV.  1162-3. 


IN    NEW    YORK,     169I-I719.  23 

and  corruption  in  New  Jersey  and  plainly  stating  Cornbury's 
conduct  in  New  York  to  be  as  bad  or  worse. ^  These  complaints 
came  by  way  of  incident  after  a  considerable  number  of  experi- 
ences by  the  Board  of  his  neglect  and  inefficiency  in  attending 
to  their  requirements.  It  seems  likely,  too,  that  the  administra- 
tion was  moved  partly  by  a  negative  aspect  of  the  news  com- 
municated by  Morris,  viz.,  that  it  was  useless  to  expect  the 
province  under  present  conditions  to  renew  the  revenue  which 
was  shortly  to  expire;  and  partly  by  the  possibility  of  a  use  for 
extraordinary  military  qualities  in  a  ^.^overnor  of  New  York  in 
view  of  the  intended  expedition  to  Canada.  At  all  events,  Love- 
lace's appointment  would  seem  to  tally  with  these  conditions. 
Smith  bluntly  says,  "We  never  had  a  governor  so  universally 
detested,  nor  any  who  so  richly  deserved  the  publick  abhorrence. 
Her  Majesty  graciously  listened  to  the  cries  of  her  in- 
jured subjects,  divested  him  of  his  power  and  appointed  Lord 
Lovelace  in  his  stead ;  declaring  that  she  would  not  countenance 
her  nearest  relations  in  oppressing  her  people."^  He  mentions 
Cornbury's  impotency  with  the  assembly,  particularly  in  the 
matter  of  the  revenue,  and  ascribes  it  to  his  partisanship  against 
the  Leislerians,  his  persecution  of  the  Presbyterians,  the  fear  of 
his  bigotry  entertained  by  the  Dutch,  his  avarice,  embezzlement 
of  the  public  money  and  his  sordid  refusal  to  pay  his  private 
debts. ^  It  would  seem  to  be  a  plain  case  of  personal  unfitness, 
finally  exhausting  the  long-suffering  patience  of  all  concerned. 
Of  the  actual  forces  efficient  with  the  home  government  in 
bringing  about  his  removal  we  have,  however,  in  the  material 
at  present  accessible  no  reliable  evidence. 

From  the  circumstances  thus  brought  out  concerning  the 
displacement  of  these  two  governors  it  appears  that  inefficiency 
and  even  corruption  in  the  office  could  run  rather  a  long  course 
before  meeting  with  decided  action  by  the  authorities  at  home. 
It  also  appears  that,  among  the  influences  practically  determining 
the  duration  and  security  of  a  governor's  lease  of  power,  faithful 
and  efficient  discharge  of  the  office  did  not  play  the  leading  part. 

The  governor  was  supported  by  the  salary  or  allowance, 
and  perquisites.     The  former  was  allotted  by  the  crown  from  the 


^Col.  Doc.  V.  33. 
'  Smith,  p.  188. 
'Smith,  p.  185. 


24  PHASES    OF    ROYAL    GOVERNMENT 

revenue  granted  by  the  assembly  for  the  support  of  government, 
and  the  amount  was  specified  in  the  instructions.  This  allotted 
salary  tended  to  increase  during  the  period  under  consideration. 
His  instructions  directed  Sloughter  to  take  i6oo  sterling,  and 
the  same  amount  was  allotted  to  Fletcher.  In  the  case  of  Bello- 
mont,  who  was  governor  of  three  colonies  at  once,  the  £600  was 
divided,  and  £400  allotted  to  Bellomont  as  governor  of  New 
York,  and  £200  to  the  lieutenant  governor  resident  at  New 
York.^  The  theory  was  that  Bellomont  could  afford  to  lose  a 
portion  of  the  customary  New  York  salary  because  of  his  receipt 
of  salaries  in  his  other  governments.  And,  on  the  other  hand, 
considering  the  likelihood  of  frequent  and  prolonged  absences  of 
the  governor  from  New  York,  the  lieutenant  governor  here 
would  require  more  than  the  usual  compensation  for  that  office, 
viz.,  one  half  the  salary  and  perquisites  of  the  governor  during 
the  time  of  the  latter's  absence. 

In  the  case  of  these  first  three  governors,  the  allotted  salary 
had  been  supplemented  by  the  "presents,"  i.  e.,  sums  of  money 
granted  by  the  assembly  "for  the  use  of"  the  governor,  gen- 
erally immediately  after  his  arrival.-  These  presents  seem  to 
have  been  officially  recognized  by  the  crown  as  a  part  of  the 
system  of  recompense  for  the  governor,  for  a  clause  in  the  in- 
structions particularly  required  that  no  money  or  value  thereof 
be  granted  "by  any  Act  or  Order  of  Assembly  to  any  Governor 
or  Lieutenant  Governor  or  Commander-in-Chief  .  .  .  which 
shall  not  according  to  the  Stile  of  Acts  of  Parliament  in  England 
be  mentioned  to  be  given  and  granted  to  us  with  the  humble 
desire  of  such  Assembly  that  the  same  be  applyed  to  the  use  and 
behoof  of  such  Governor  .  .  .  if  we  shall  think  fit  or  if  we 
shall  not  approve  of  such  gift  or  application"  the  money  should 
be  appropriated  to  other  uses  mentioned  in  the  Act  and  to  remain 
in  the  hands  of  the  Collector  till  the  royal  pleasure  be  known. ^ 
Nevertheless  Sloughter's  first  assembly  granted  the  money  that 
came  in  to  the  receiver-general  on  account  of  duties,  etc.,  "accus- 
tomed to  be  taken  but  not  Warrantable  by  the  Law"  between 


^Col.  Doc.  IV.  290.  The  reverse  of  the  arrangement  in  the  case  of 
Andros  in  1688. 

^  Peter  de  la  Noy,  referring  to  the  present  to  Fletcher,  calls  it  "the 
usual  compliment  made  to  a  new  Governor."     Col.  Doc.  IV.  221. 

'  Ibid  III.  686. 


IN    NEW    YORK^    169I-I719.  2$ 

29  January,  1691,  the  date  of  Ingoldsby's  arrival,  and  18  May, 
1691,  the  date  of  pubhcation  of  the  act  granting  a  revenue  for 
the  support  of  government,  to  "his  said  Excellency  to  enable 
(him)  to  defray  his  extraordinary  expence."^ 

The  first  assembly  called  by  Fletcher  made  him  a  present, 
partially  complying  with  the  requirements  of  the  instructions. 
By  this  act  "the  Rate  of  one  Penny  in  the  Pound  upon  all  the 
Reall  and  Personal  Estates  within  the  Province"  was  granted 
to  their  Majesties  "to  be  allowed  unto  his  Excellency  the  Gov- 
ernor for  his  care 'of  the  Province;"  but  no  provision  was  made 
for  complying  with  the  other  requirements  of  the  instructions 
for  such  a  case.^  This  rate,  according  to  his  own  account,  brought 
in  to  Fletcher  actually  about  £600.  His  enemies  asserted  that 
it  should  have  amounted  to  i20oo,  but  that  Fletcher,  by  his 
greediness,  mismanaged  tne  collection  so  that  he  lost  the  greater 
part,  that  he  accused  the  assessors  of  partiality  and  threatened  to 
commit  them  to  jail  for  not  assessing  the  inhabitants  heavily 
enough.  Fletcher  himself  ascribed  his  misfortune  to  a  merchant 
of  the  city  to  whom  he  entrusted  the  collection  and  by  whom  he 


^  Colonial  Laws  of  N.  Y.,  253-4.  It  is  to  be  observed  that  this  was 
the  first  assembly  legally  held  in  the  province,  since  it  came  under  the 
direct  government  of  the  crown.  This  assembly  evidently  took  the 
ground  that  the  new  plan  of  government  contained  in  the  commission 
and  instructions  to  Sloughter  went  into  operation  with  the  arrival  of  a 
royal  officer  commissioned  to  obey  the  king's  "Governor  of  N.  Y.  now 
and  for  the  time  being."  In  that  case,  taxes  of  any  sort  could  only  be 
collected  on  the  authority  of  the  assembly  which  was  directed  to  be 
summoned  by  the  governor.  A  collector,  then,  who  had  continued  to 
receive  taxes  dependent  for  their  authority  on  the  former  regime,  would 
need  to  be  indemnified  for  such  proceeding  for  the  period  between  the 
determination  of  the  old  regime  and  actual  granting  of  taxes  by  the 
proper  authority  of  the  new  government.  This  indemnification  was 
another  feature  of  the  act,  which  granted  the  proceeds  of  such  collection 
to  the  governor.  It  is  further  to  be  observed  that  according  to  that  which 
later  became  the  custom  of  the  province,  the  administration  of  a  new 
governor  did  not  begin  till  he  had  actually  arrived  and  published  his 
commission.  From  this  technical  point  of  view,  then,  the  new  Constitu- 
tion could  not  be  regarded  as  actually  in  operation  till  the  arrival  of 
Sloughter,  19  March,  nearly  two  months  after  the  arrival  of  Ingoldsby, 
and  in  this  act  the  assembly  was  granting  what  did  not  belong  to  it, 
and  that  to  the  amount  of  the  proceeds  of  these  two  months.  It  does  not 
appear,  however,  that  this  view  of  the  matter  was  ever  publicly  mentioned. 

'  Col.  Laws  I.  308. 


26  PHASES    OF    ROYAL    GOVERNMENT 

was  deceived  —  this  according  to  Bellomont's  report.^  Fletcher 
was  also  accused  of  trying  to  enforce  the  "present"  device  upon 
the  smaller  units  of  government,  procuring,  through  his  tools,  an 
Address  and  a  golden  cup  of  the  value  of  £20  from  the  city  of 
New  York,  and,  by  the  use  of  blackmailing  methods  upon  the 
Indian  fur-trade  at  Albany,  a  present  of  fifty  or  sixty  of  the  best 
skins. ^ 

The  first  assembly  of  Bellomont's  administration  did  no 
public  business.  But  at  the  first  session  of  his  second  assembly, 
elected  after  changes  in  the  lists  of  the  returning  officers  and 
under  circumstances  of  great  excitement,  an  act  was  passed, 
granting  to  the  king  £2000,  "£1500  whereof  to  be  allowed  to 
his  Excellency.  .  .  .  and  £500  to  .  .  .  the  Lieutenant 
Governor."  The  provisions  of  this  act  seem  even  more  at  vari- 
ance with  the  letter  of  the  requirements  of  the  instructions,  for, 
though  the  language  of  the  introductory  sentences  conveys  une- 
quivocally the  meaning  of  a  direct  gift  to  the  crown  in  the  most 
humble  terms,  the  enacting  clause  provides  that  the  said  sum  be 
"raised  to  the  uses  aforesaid  and  to  no  other  use  .  .  .  what- 
ever."^ It  is  uncertain  whether  the  governor  and  lieutenant 
governor  ever  had  any  benefit  from  this  act.  As  late  as  29  July, 
1700,  Bellomont  complained  of  ill  usage  from  the  home  govern- 
ment in  "not  allowing  me  to  make  use  of  the  £1500  given  by 
this  province  in  almost  a  year  and  a  half's  time."*  And  in  Octo- 
ber, 1700,  he  complained  most  bitterly  that  the  long  suspension 
of  this  act  was  being  used  by  his  opponents  in  New  York  as 
an  undeniable  token  of  his  disgrace  at  home.^  It  would  seem 
that  the  delay  was  occasioned  by  the  solicitor  general's  office 
in  London  and  that  the  whole  matter  of  salaries  was  under  con- 
sideration by  the  crown  as  late  as  21  June,  1700.  But  the  terms 
used  in  the  letter  of  the  Board,  19  September,  1700,  make  it 
entirely  uncertain  whether  this  act  is  or  is  not  one  of  those  which 
they  mention  as  having  declined  to  give  an  opinion  upon.®  A 
part,  at  any  rate,  of  the  £2000  was  collected,  but  no  full  account 


'Col.  Doc.  IV.  221,  611-2. 

'  Ibid.  IV.  222-3. 

'  Col.  Laws  I.  397. 

*Col.  Doc.  IV.  698. 

Mbid.  714. 

''Ibid.  667,   699,  840. 


IN    NEW    YORK,    169I-1719.  2/ 

was  ever  obtained.  Apparently  what  accounts  there  ever  were 
on  the  subject  disappeared  when  Weaver,  collector  and  receiver 
general  under  Bellomont,  was  suspended  by  Cornbury.^ 

Apparently  the  home  government  had  not  reached  any  con- 
clusion in  the  matter  of  an  increase  of  the  allotted  salary  of 
the  governor,  when,  in  the  summer  of  1701,  a  commission  and 
a  set  of  instructions  were  drawn  up  for  Cornbury;  for  none  of 
the  few  alterations  made  in  the  instructions  of  Bellomont 
concerned  the  matter  of  the  governor's  salary.^  Cornbury's 
first  assembly  passed  an  act  for  a  present  of  £2000  to  the  gov- 
ernor, which  act  conformed  fully  to  the  letter  of  the  require- 
ments, appropriating  the  sum  so  raised  to  the  defense  of  the 
country  in  the  absence  of  the  king's  permission  for  its  original 
application.^  This  act  was  confirmed  by  the  queen."*  But  in 
April,  1703,  a  letter  from  the  queen,  alleging  the  inconveniency 
arising  from  the  custom,  forbade  a  governor  to  give  his  consent 
to  any  law  or  act  for  a  gift  or  present  from  the  assembly  to 
any  governor  or  lieutenant  governor  or  commander-in-chief, 
and  also  forbade  such  persons  to  accept  any  present  from  the 
assembly  or  any  one  else  in  any  manner  under  penalty  of  high- 
est displeasure  and  recall  from  office.  By  the  same  letter,  which, 
incidentally,  was  incorporated  in  all  succeeding  instructions,  the 
governor  was  directed  to  take  from  the  revenue  £1200  instead 
of  £600  as  his  salary,  and  the  assembly,  in  consideration  of  light- 
ening the  "customary  burthen  of  presents,"  was  to  be  informed 
of  the  queen's  expectation  "that  they  would  contribute  in  a 
more  ample  and  effectuall  manner  to  their  own  safety  and  pres- 
ervation."^ No  further  change  was  made  by  the  crown  in  the 
amount  of  the  governor's  allotted  salary  during  the  period  under 
consideration. 

No  resistance  seems  to  have  been  actually  put  forth  against 
this  allotment  by  the  crown  out  of  the  revenue  raised  by  the 
assembly  till  1710,  when,  at  the  beginning  of  Hunter's  adminis- 
tration, the  assembly  entered  upon  a  long  contest  with  the  gov- 


'  Minutes  of  the  Executive  Council,  VIII.  144,  152,  183-4,  259,  270, 
328.     Colonial  Mss.   XLIV.  51,  XLVII.   110. 
^Col.  Doc.  IV.  885. 
'  Col.  Laws  I.  508. 
*Col.  Doc.  IV.  1038. 
Mbid.   IV.   1040-1. 


28  PHASES    OF    ROYAL    GOVERNMENT 

ernor  and  council  upon  the  whole  issue  of  support  of  govern- 
ment, a  contest  which,  as  its  development  showed,  was  waged 
upon  the  abstract  question  of  the  political  consequences  of  the 
previous  method  of  support,  unconnected  with  complications  of 
personal  animosity  against  the  governor.  This  contest  was  of 
signal  importance  for  the  constitutional  development  of  the  prov- 
ince, and  the  story  of  it  will  be  related  in  another  connection. 
On  this  particular  point  of  the  amount  of  the  governor's  salary 
and  the  crown's  allotment  of  it  from  the  revenue,  it  is  to  be 
observed  that  one  feature  of  the  contest  was  the  proposition  of 
the  assembly  in  1710  to  vote  2500  ounces  of  silver  —  about  one 
half  the  value  of  the  appointed  salary  —  ''towards  defraying  the 
Governor's  necessary  expense  for  one  year."  Hunter  reported 
that  in  doing  this  the  assembly  was  acting  definitely  on  the 
notion  that  the  crown  had  no  right  to  appoint  a  governor's  salary 
out  of  the  revenue  raised  by  them.  He  exhibited  to  the  assembly 
the  clause  of  his  instructions  fixing  his  salary,  but  all  to  no  pur- 
pose. The  matter  went  so  far  that  the  Board  of  Trade  prepared 
bills  for  parliament  enacting  "a  Revenue  of  what  has  usually 
been  allowed  .  .  .  for  the  support  of  the  Governor  and  the 
necessary  expenses  of  government."^  In  the  final  settlement, 
by  compromise,  of  the  whole  dispute,  in  171 5,  the  assembly  by 
resolve  fixed  the  governor's  salary  at  the  figure  named  in  the 
instructions.^ 

The  perquisites  were  described  by  Bellomont  at  the  begin- 
ning of  his  administration  as  consisting  of  fees  —  for  passes  for 
ships,  marriage  licenses,  probate  business  and  other  things  re- 
quiring the  province  seal,  —  fines  and  forfeitures,  one  third  of 
the  proceeds  from  seizures  of  vessels  and  goods  for  unlawful 
trade,  and  presents  from  the  Indians.^  The  governor's  share  in 
the  proceeds  from  seizures  was  secured  to  him  by  act  of  par- 
liament.* His  income  from  fees  became  increasingly  liable  to 
attack  on  the  part  of  the  assembly  as  time  went  on,  but  during 
the  period  under  consideration  no  act  regulating  fees  escaped 
disallowance  in  England.  Besides,  the  dispute  over  fees,  which 
was  a  feature  of  the  great  struggle  between  the  governor  and 

'  Col.  Doc.  V.  191-3,  197,  285,  287,  330,  333,  359-60,  367,  452. 
^Journal  of  the  Assembly  I.  375. 
'Col.  Doc.  IV.  316,  522-3. 
nbid.  IV.  316. 


IN    NEW    YORK,     169I-I719.  29 

council  and  assembly,  1709- 171 5,  seems  to  have  been  rather 
over  fees  of  court  officers  and  attorneys  than  those  taken  by  the 
governor  and  secretary.^  In  the  Table  of  Fees  proposed  by 
the  assembly  in  1709  there  appear  in  addition  to  the  fees  for 
purposes  already  mentioned,  fees  taken  at  different  stages  in  the 
process  of  getting  a  patent  for  land.^ 

From  Bellomont,  more  than  any  one  else,  we  get  information 
concerning  both  the  amount  of  salary  and  perquisites  together, 
and  the  amount  of  different  items  of  perquisites.  He  complains 
early  in  his  residence  in  New  York  that  he  does  not  see  how 
he  can  make  above  £800  salary  and  perquisites,  and  somewhat 
later  reports  that  in  thirteen  months,  outside  of  salary  and  pro- 
ceeds of  seizures,  he  has  received  only  £83 : 6,  New  York  money, 
for  passes  for  ships,  marriage  licenses,  probate  business  and  all 
things  requiring  the  province  seal,^  and  £88:9:  10  from  the  sale 
of  skins  received  as  presents  from  the  Indians.  According  to 
the  accounts  of  Weaver,  collector  and  receiver  general  under 
Bellomont,  the  seizures  for  the  period  from  8  June,  1698,  to 
25  November,  1700,  amounted  to  £375:13:72.*  So  that  Bello- 
mont's  fears,  expressed  above,  as  to  his  yearly  income  from  his 
New  York  government  not  reaching  £800  seem  entirely  justified. 
Bellomont  was  not  at  all  backward  in  representing  the  matter 
to  the  Board  of  Trade,  asserting  that  he  was  worse  off  in  fortune 
than  when  he  came,  though  if  he  were  willing  to  use  the  corrup- 
tion of  Fletcher  he  could  make  the  government  more  valuable 
than  that  of  Ireland,  ''reckoned  the  best  government  in  His  Maj- 
estie's  gift ;"  calling  their  attention  to  the  fact  that  the  intendant 
of  Canada  gets  as  much  as  he  himself  gets  from  all  three  of 
his  governments,  while  the  emoluments  of  the  governor  of  Can- 
ada are  reckoned  anywhere  from  six  to  ten  thousand  pistoles. 
He  admits  that  Virginia  and  Maryland,  whose  governorships 
are  worth  respectively  £4000  and  £2500,  yield  a  great  revenue 
to  the  crown,  but  contends  that  that  very  revenue  in  those  prov- 
inces depends  upon  his  own  right  management  of  the  Indians  in 


'Col.  Doc.  IV.  157,   170,   177,   184,  947.     Col.  Laws  I.  639. 
'Ibid.  638. 

^  The  governor  received  twelve  shillings  for  every  use  of  the   Pro- 
vince seal.     Col.  Doc- IV.  378,  522-3,  687. 
*Col.  Mss.  XLVIII.   110. 


30  PHASES    OF    ROYAL    GOVERNMENT 

New  York.^  We  have  seen  that  early  in  Cornbury's  term  the 
allotted  salary  was  doubled,  but  whether  this  was  in  direct  re- 
sponse to  Bellomont's  representations,  we  have  no  means  of 
knowing.  Fletcher  was  accused  of  having,  by  the  use  of  all 
possible  devices,  cleared  from  £30,000  to  £40,000  in  his  six  years 
of  residence.  He  himself  said  that  if  he  should  get  all  that  was 
due  to  him  his  net  gains  would  not  amount  to  more  than  £3000.^ 
Fletcher  certainly  must  have  cleared  more  than  that,  by  all  ac- 
counts but  his  own,  but  whatever  the  figure,  his  is  not  a  typical 
case,  for  no  subsequent  governor  was  allowed  the  opportunities 
which  he  so  richly  exploited. 

A  travelling  allowance  seems  to  have  been  made  in  some 
cases  out  of  the  revenue  in  England.  Bellomont  accused  Fletcher 
of  having  obtained  the  consent  of  the  council  in  New  York  to 
the  issue  of  a  warrant  to  himself  for  £130,  to  reimburse  him  for 
his  expenses  on  the  voyage  from  England  ("notwithstanding  his 
Majesty's  Allowance  of  i6oo  on  that  account  in  England.")^ 
The  minutes  of  the  council  show  the  passage  of  such  a  warrant, 
but  as  yet  no  indications  have  been  found  of  the  payment  of  such 
sum  in  England.  In  the  case  of  Cornbury,  we  have  his  request 
to  the  Board  of  Trade  for  "such  allowance  of  tunnage  as  is  usual" 
for  transporting  his  servants  and  goods  to  New  York.*  And  on 
a  date  suspiciously  close  to  that  of  his  request  we  have  the  follow- 
ing: "His  Majesty  directs  that  in  order  to  avoid  making  prece- 
dents there  be  paid  to  Lord  Cornbury  Governor  of  New  York 
iiooo  out  of  the  secret  service  money  as  of  His  Majesty's  bounty 
to  enable  him  to  proceed  on  his  voyage."^  From  this  it  is  natural 
to  infer  that  such  an  allowance  at  any  rate  was  not  usual.  And 
it  is  of  interest  to  note  that  Cornbury  succeeded  in  the  first  few 
days  of  his  residence  in  New  York  in  persuading  the  council  to 
give  him  a  warrant  for  one  half  his  salary  for  the  period  between 
the  date  of  his  commission  and  his  arrival  in  the  province,  a 
period  of  eight  months.^  No  evidence  of  a  travelling  allowance 
appears  in  the  cases  of  the  other  governors,  and  as  both  of  those 


'  Col.  Doc.  IV.  378,  676,  724. 

'  Ibid.  IV.  451. 

'Ibid.  IV.  422. 

Mbid.  IV.  913. 

»Cal.   Treas.   Papers   Vol.   1701-1707,  2/13   Sept.   1701. 

'Minutes  of  Exec.  Council  IX.  27. 


IN    NEW    YORK,     169I-I719;  3I 

who  succeeded  in  obtaining  it  had  an  unsavory  reputation  for 
greed,  we  must  consider  that  it  was  not  a  regular  feature  of  the 
governor's  support. 

The  powers  to  be  exercised  by  the  governor  were  conveyed 
through,  and  described  by,  the  commission  and  instructions. 
The  relation  between  these  two  documents  has  been  well  indi- 
cated by  Greene,  who  describes  the  commission  as  containing 
the  grant  of  power  and  the  instructions  as  containing  directions 
for  the  use  of  that  power,  frequently  limiting  its  scope.^ 

Here  it  will  be  convenient  to  consider  the  commission  and 
instructions  together,  and  inquire  to  what  degree  they  partook  of 
that  comparative  fixity  of  character  and  publicity  which  we  asso- 
ciate with  the  idea  of  a  written  constitution  and  note  some  partic- 
ulars of  the  form  in  which  this  quasi  constitution  appears. 

The  changes  in  the  commission  were  made  gradually  and 
in  the  period  under  consideration  were,  though  rather  numerous 
in  the  aggregate,  not  very  extensive  in  character.  Sloughter's 
commission,  which  was  modelled  on  Dongan's  rather  than  on 
Andros',  was  expressed  in  forty  clauses  and  covered  twelve  dif- 
ferent subjects.  Hunter's  commission,  which  was  shorter  and 
covered  fewer  general  subjects,  showed  twenty-two  changes  in 
all  from  that  of  Sloughter,  of  which  some  were  purely  formal, 
two  consisted  of  slight  and  insignificant  changes  in  verbal  ex- 
pression, some  were  omissions  because  of  changes  in  the  imperial 
system,  such  as  the  power  to  "erect,  nominate  and  appoint  Cus- 
tom houses  and  officers  pertaining,"  and  some  were  the  result  of 
local  development  within  the  province,  such  as  the  direction  in 
Hunter's  commission  for  summoning  assemblies  according  to 
the  usage  of  the  province  of  New  York  instead  of  according  to 
the  usage  of  other  plantations  in  America.-  Of  these  changes 
more  than  one-half  were  made  between  the  issue  of  a  commission 
to  Bellomont  and  that  to  Hunter.  The  commission  was  published 
immediately  upon  a  governor's  arrival,  that  is  to  say,  it  was  pub- 
licly read  under  conditions  of  some  ceremony.  Sometimes  it  was 
read  twice,  once  at  the  fort  in  the  presence  of  the  council,  after 
which  the  governor  and  council  took  the  oaths  and  then  pro- 
ceeded to  the  City  Hall,  where  the  commission  was  read  again.^ 

*  Greene  :     Provincial  Governor,  p.  94. 

'  Col.  Doc.  III.  623 ;    V.  62-8. 

'  Minutes  of  Exec.   Council  IX.  16-18. 


32  PHASES    OF    ROYAL    GOVERNMENT 

In  form  the  commission  consisted  chiefly  of  conveyances  of 
power  from  the  king,  the  terms  used  being  *'we  do  hereby  give 
and  grant  full  power  and  authority;"  of  requirements  or  direc- 
tions, the  terms  used  being,  "our  Will  and  Pleasure  is,"  "we  will 
and  require  you,"  and  of  appointment  or  declaration,  using  such 
phrase  as  "we  do  ordain,  constitute  and  appoint."  The  form  of 
direct  grant  of  power  is  used  in  two-thirds  of  the  instances  and 
though  there  seems  to  be  a  slight  preponderance  of  the  use  of  the 
phrases  of  requirement  and  direction  in  the  case  of  restrictions 
on  popular  power,  this  is  not  at  all  certain. 

The  instructions  showed  a  very  much  greater  tendency  to 
increase  in  length  and  to  go  into  more  and  more  specific  detail 
and  complexity.  Sloughter's  instructions  contained  sixty-two 
clauses,  which  number  had  increased  by  Hunter's  time  to  one 
hundred  and  twelve,  and  three-fourths  of  the  increase  was  made 
in  the  latter's  instructions.  Sloughter's  instructions,  like  his 
commission,  were  based  on  Dongan's,  the  chief  differences  being 
due  to  the  presence  of  an  assembly,  the  encouragement  of  the 
ecclesiastical  jurisdiction  of  the  Bishop  of  London  instead  of  the 
Archbishop  of  Canterbury  and  the  exclusion  of  Papists  from  the 
privileges  of  toleration,  the  limitation  of  the  appointing  powers 
of  the  governor  and  the  specific  inclusion  of  the  matter  of  ap- 
peals to  the  privy  council.  Of  the  sixty-two  clauses  in  Slough- 
ter's instructions,  nine  concerned  the  governor  and  his  relation 
to  other  officials,  six  concerned  legislation,  seven  administration 
of  justice,  twelve  guardianship  of  morals  and  ecclesiastical  admin- 
istration, six  administration  of  military  affairs,  eight  fiscal  admin- 
istration, three  diplomatic  affairs,  meaning  by  that  relations  with 
other  colonies,  with  the  Indians  and  with  European  powers  in 
treaty  relation  with  Great  Britain,  and  two  concerned  the  trans- 
mission of  statistical  matter  by  the  governor.  Of  the  forty-five 
changes  between  Slou<?^hter  and  Hunter,  twenty-two  concerned 
the  conduct  of  the  machinery  of  government  by  the  executive, 
twelve  the  legislative  part  of  the  work  of  government,  and  eleven 
were  of  a  temporary  or  emergent  character.^  The  form  ordinarily 
used  in  the  clauses  of  the  instructions  was  that  of  direction  — 
"you  are  to"  or  "you  are  not  to,"  "you  are  to  take  care  that,"  etc. 
In  certain  cases,  "particular"  care  was  enjoined;    in  the  case  of 


'  Col.  Doc.  III.  685 ;    V.  124. 


IN    NEW    YORK,     169I-I719.  33 

Sloughter's  instructions,  in  six  matters  —  the  form  of  grant  of 
money  as  a  present,  the  prohibition  of  a  law  or  act  lessening  the 
revenue,  regulation  of  salaries  and  fees,  the  frequency  of  musters 
of  the  militia,  the  settling  of  military  storehouses,  and  the  equip- 
ping of  orthodox  churches  with  the  Table  of  Marriages.  This 
particular  care  was  enjoined  in  addition  on  Fletcher  in  the  matter 
of  worship  according  to  the  Anglican  rite  and  on  Hunter  in  the 
matter  of  forms  of  law-making,  transmission  of  accounts,  keep- 
ing of  entries  of ,  imports  and  exports  and  shipping  and  the 
account  of  the  province's  supply  of  negroes.  The  phrase  "Our 
Will  and  Pleasure  is"  seems  in  the  instructions  to  be  used  for 
much  the  same  purpose  as  the  enjoining  of  particular  care.  For 
example,  it  was  used  in  Sloughter's  instructions  in  reference  to 
six  matters  —  the  quorum  in  council,  the  salary  of  the  lieutenant 
governor,  the  requirement  of  a  certificate  from  the  Bishop  of 
London  in  preferring  to  benefice,  admission  of  ministers  to  ves- 
tries, salary  of  the  governor  and  the  clause  conferring  general 
powers  in  matters  not  covered  in  the  instructions.  In  succeeding 
instructions  it  is  used  in  reference  to  fourteen  other  matters, 
which,  like  those  already  adduced,  seem  to  have  reference  to 
points  in  the  conduct  of  government  by  the  executive  which  ex- 
perience had  shown  to  be  important  for  efficiency.  Special  stress 
was  laid  by  means  of  threats  of  loss  of  salary,  or  loss  of  place,  or 
of  highest  displeasure  on  the  transmission  of  accounts  and  laws 
and  vigilance  in  execution  of  the  acts  of  trade  and  navigation. 
The  instructions  became  increasingly  minute  in  directions  as  to 
conduct  of  the  legislative  work  of  government,  the  chief  objects 
being  the  prohibition  of  the  passage  of  certain  kinds  of  acts,  re- 
quirement of  certain  conditions  in  certain  kinds  of  acts,  prohibi- 
tion of  insertion  of  certain  kinds  of  clauses,  recommendation  of 
certain  acts  to  the  assembly,  etc.  It  is  worthy  of  note  that  in 
respect  to  all  these  matters  —  number  of  articles  or  clauses,  num- 
ber of  those  clauses  on  which  special  stress  is  laid,  and  minuteness 
of  direction  with  respect  to  the  conduct  of  government  in  those 
matters  shown  by  imperial  experience  to  be  important,  there  is 
marked  development  during  the  period  between  Bellomont  and 
Hunter,  and  that  the  commission  and  instructions  in  Hunter's 
time  seem,  more  than  in  the  case  of  any  of  his  predecessors,  to 


34  PHASES    OF    ROYAL    GOVERNMENT 

embody  the  results  of  experience  as  well  as  the  ideals  of  the 
empire. 

As  to  publicity,  we  observe  that  by  their  own  tenor  the  in- 
structions were  required  to  be  exhibited  only  in  certain  parts  and 
to  certain  parties  —  the  clauses  in  which  the  advice  and  consent 
of  the  council  were  required  for  the  validity  of  some  action  were 
to  be  communicated  to  the  council,  —  and  such  other  instruc- 
tions as  should  be  found  convenient  for  the  service  to  be  imparted 
unto  them.  The  former  were  not  very  numerous,  being  four  in 
Sloughter's  and  seven  in  Hunter's  instructions.  Practically,  the 
instructions  seem  to  have  been  accessible  at  times  of  exceptional 
emergency.  On  Bellomont's  death,  his  commission  and  instruc- 
tions were  produced  at  the  following  council  meeting  and  read.^ 
And  in  the  dispute  following,  Smith,  the  eldest  councilor,  argued 
in  objection  to  the  procedure  proposed  by  the  Leislerian  leaders 
that  business  men  would  be  slow  to  risk  on  the  credit  of  a  gov- 
ernment "which  they  are  not  satisfied  pursues  the  powers  of  His 
Majestie's  letters  patent."^  On  Lovelace's  death,  his  instructions 
were  entered  in  full  in  the  council  book.^  When  Bellomont  was 
in  doubt  as  to  the  meaning  of  the  clause  giving  half  his  salary 
and  perquisites  to  the  lieutenant  governor,  he  showed  the  clause 
to  a  ''friend  or  two  that  are  lawyers."*  Of  course  instructions 
respecting  legislation,  both  as  to  form  and  effect,  became  common 
property  when  use  of  them  became  necessary  to  a  governor  in 
defense  of  his  course.  But,  to  whatever  degree  non-official  people, 
who  were  nevertheless  interested  in  the  contents  of  the  instruc- 
tions, succeeded  in  getting  knowledge  of  them  here  and  there, 
the  fact  remains  that  the  instructions  were  nothing  like  the  pub- 
licly known  document  that  a  modern  constitution  is,  though  they 
constituted  the  most  important  part  of  what  was  actually  the 
public  law  of  the  province. 

Hunter  was  the  first  of  the  New  York  governors  to  receive 
a  separate  set  of  instructions  relating  to  his  duty  in  the  enforce- 
ment of  the  acts  of  trade  and  navigation.  In  the  instructions 
to  Bellomont  and  to  Cornbury  a  clause  appeared,  reciting  that 
notwithstanding  the  act  of  1696-97  great  abuses  were  still  prac- 


Minutes  of  the  Exec.  Council  VIII.  211-12. 

Col.  Mss.  XLIV.  90. 

Minutes  of  Exec.  Council  10  :303. 

Col.  Doc.  IV.  317. 


IN    NEW    YORK,     169I-I719.  35 

ticed,  arising  either  from  the  insolvency  of  the  persons  accepted 
as  securities  or  from  the  remissness  or  connivance  of  the  gov- 
ernors in  the  plantations,  and  declaring  that  failure  in  due  ob- 
servance of  these  laws  in  New  York  through  wilful  fault  or 
neglect  on  the  part  of  the  governor  would  be  looked  upon  as  a 
breach  of  trust  and  would  be  punished  with  loss  of  place  and 
further  marks  of  royal  displeasure/  The  same  clause  appeared 
in  Hunter's  instructions,-  and,  in  addition,  he  was  given  a  set 
of  "Orders  and  Instructions  ...  in  pursuance  of  several 
Laws  relating  to  the  Trade  and  Navigation  of  .  .  .  Great 
Britain  and  our  Colonies  and  Plantations  in  America."  By  these 
he  was  required  to  inform  himself  of  the  principal  laws  on  this 
subject,  specifying  the  Acts  of  12,  14,  15,  22  and  23,  and  25, 
Car.  II,  and  of  7  and  8,  William  III.  He  was  to  take  care 
that  his  Naval  Officer  give  security  to  and  be  approved  by  the 
commissioners  of  the  customs  in  England.  He  was  to  transmit 
every  three  months  or  oftener  lists  of  the  vessels  trading  in  the 
province  and  copies  of  the  returns  made  by  masters  concerning 
the  contents  and  quality  of  cargoes,  according  to  enclosed  forms. 
He  was  not  to  make  or  allow  any  by-law,  usage  or  custom  in  the 
province  repugnant  to  such  laws  of  parliament  as  mention  the 
plantations,  but  was  to  declare  such  usages  null  and  void.  He 
was  to  assist  in  all  ways  the  collector  and  other  officers  appointed 
by  the  commissioners  of  the  customs.  He  was  to  take  care 
that  in  any  actions  at  law  in  the  matter  of  forfeitures  for  unlaw- 
ful trade  "there  be  not  any  Jury  but  such  as  are  natives  of  this 
kingdom  or  Ireland  or  are  Born  in  any  of  our  said  Plantations." 
He  was  to  take  care  that  offices  in  courts,  "or  in  what  relates 
to  the  Treasury  of  our  .  .  .  province  of  New  York,"  be  in 
the  hands  of  native  born  subjects.  He  was  to  correspond  with 
the  commissioners  of  the  customs  as  to  the  conduct  of  the  cus- 
toms officers  in  the  province  and  as  to  all  occurrences  that  were 
necessary  for  their  information.  The  rest  of  the  twenty-four 
clauses  consist  of  explanations  and  interpretations  of  the  laws 
already  mentioned  and  such  other  laws  relating  to  the  same  sub- 
ject as  had  been  passed  since  that  time."' 


'Col.  Doc.  IV.  291-2. 
^Col.  Doc.  V.   143. 
'Col.  Doc.  V.  144-53. 


36  PHASES    OF    ROYAL    G0VERNMP:NT 

Attempt  was  made  to  insure  due  performance  of  his  func- 
tions from  a  governor  by  the  exaction  of  a  series  of  oaths. 
Sloughter  was  required  in  his  commission  to  take  an  oath  for  the 
due  execution  of  his  office  and  trust,  and  this  oath  might  be  ad- 
ministered to  him  by  any  five  of  the  council  Presumably  he 
himself  took  at  the  same  time  the  oaths  "appointed  by  Act  of 
Parliament  to  be  taken  instead  of  the  oaths  of  Allegiance  and 
Supremacy  and  the  Test/'  for  he  was  required  to  administer 
these  oaths  to  the  members  of  the  council,  and  in  Bellomont's 
commission  and  instructions  it  was  definitely  specified  that  he 
should  himself  take  and  then  administer  to  the  council  the  above- 
mentioned  oaths.  In  addition,  he  and  the  members  of  the  council 
were  required  to  subscribe  the  Association.^  In  addition  to  these 
engagements,  Cornbury  "took  a  solemn  oath  to  observe  punctu- 
ally and  bona  fide  the  Act  of  7  and  8,  William  III,  and  all  other 
Acts  of  Trade. "^  The  council  minutes  describe  Lovelace  as  tak- 
ing all  the  oaths  and  subscribing  the  Declaration,  by  which  is 
probably  meant  the  Declaration  "mentioned  in  an  Act  of  Parlia- 
ment made  in  the  25th  year  of  the  reign  of  King  Charles  the 
Second,  Entitled  'An  Act  for  preventing  dangers  which  may 
happen  from  Popish  Recusants,'  "  for  we  find  the  requirement  of 
this  Declaration  mentioned  in  Plunter's  commission.  Hunter 
was  further  required  to  take  the  oath  mentioned  in  the  Act  of 
Succession.^ 

Arrangements  for  the  administration  of  the  powers  of  the 
governor's  commission  and  instructions  in  case  of  the  death,  re- 
moval, or  departure  from  the  province  of  the  regular  incumbent 
were  a  long  time  in  reaching  a  practical  settlement.  Till  Bello- 
m.ont's  time,  the  commission  provided  for  the  succession  of  "such 
Person  as  shall  be  appointed  by  us  to  be  Commander  in  Chief" 
and  in  case  there  should  be  "no  Person  upon  the  Place  com- 
missionated  or  appointed  by  us  to  be  Commander  in  Chief  Our 
Will  and  Pleasure  is  that  .  ,  .  Council  ...  do  take 
upon  them  the  Administration  of  the  Government."*  The  in- 
structions, however,  provided  for  the  enjoyment  of  one-half  of 
the  salary  and  perquisites  during  the  absence  of  the  governor  by 

'  Col.  Doc.  III.  623,  685,  818,  827.     Ibid.  IV.  266,  284. 
'Minutes  of  Exec.   Council   IX.   16-18. 
'  Minutes  of  Exec.  Council  X.  266,  513.     Col.  Doc.  V.  92. 
^Col.  Doc.   III.  623. 


IN    NEW    YORK,     169I-I719.  37 

''such  Lieutenant  Governor  or  Commander  in  Chief  who  shall  be 
resident  upon  the  place  for  the  time  being."^  And  in  general 
throughout  the  period  the  terms  Lieutenant  Governor  and  Com- 
mander in  Chief  seem  to  be  used  practically  without  distinction. 
When  Bellomont  was  appointed  governor  of  New  York,  Massa- 
chusetts and  New  Hampshire,  his  kinsman,  Nanfan,  was  com- 
missioned, as  lieutenant  governor  of  New  York,  and  empowered 
to  execute  the  powers  and  directions  of  the  commission  and  in- 
structions in  the  case  of  the  death  or  absence  of  the  governor 
and  to  follow  the  directions  of  the  governor  of  New  York  for 
the  tim.e  being  during  the  latter's  residence  in  the  province.^ 
Bellomont  died  at  New  York  in  March,  1701,  and  after  an  inter- 
val of  confusion,  Nanfan  administered  the  government  till  the 
arrival  of  Cornbury  in  May,   1702. 

On  the  appointment  of  Cornbury  as  governor  of  New  Jer- 
sey as  well  as  of  New  York,  Major  Richard  Ingoldsby  received 
two  commissions,  one  as  lieutenant  governor  of  New  York,  and 
one  for  the  same  office  in  New  Jersey.  That  for  New  York  was 
dated  25  November,  1702,  and  it  is  to  be  presumed  that,  as  in  the 
case  of  a  governor's  commission,  the  arrival  of  Ingoldsby  ter- 
minated the  effectiveness  of  the  commission  to  Nanfan,  of  the 
formal  revocation  of  which  there  appears  no  record.*'  Experi- 
ence under  this  arrangement  proving  unsatisfactory,  Ingoldsby's 
commission  as  lieutenant  governor  of  New  York  was,  in  1706, 
ordered  to  be  revoked,  and  he  was  directed  to  reside  in  New 
Jersey.*  But  for  some  reason  no  notice  of  the  revocation  of  his 
commission  was  sent  to  him  at  the  time,  and  on  the  death  of 
Lovelace  in  1709,  he  succeeded  to  the  governorship.  The  Board 
of  Trade  on  learning  of  his  accession  looked  the  matter  up  and 
thereupon  revocation  of  his  commission  was  formally  notified 
to  him.  This  brought  the  administration  of  the  powers  of  the 
government  into  the  hands  of  the  council,  of  which  Gerardus 
Beekman  was  president,  and,  shortly  after,  an  order  in  council 
was  despatched,  recognizing  him  as  the  head  of  the  government 
in  the  province  and  restricting  him  in  the  exercise  of  this  power 


Col.  Doc.  III.  6 
Ibid.  IV.  277. 
Ibid.  1002,  1162. 
Ibid.  1174-6. 


38  PHASES    OF    ROYAL    GOVERNMENT 

in  certain  matters.^     These  are  the   only   instances   during  this 
period  of  the  succession  of  the  lieutenant  governor. 

The  only  case  of  the  administration  of  the  government  by 
a  commander-in-chief  is  an  entirely  anomalous  one,  occurring 
at  the  beginning  of  the  period.  As  a  matter  of  fact,  though  the 
terms  Lieutenant  Governor  and  Commander-in-Chief  are  used 
apparently  without  practical  distinction,  we  have  no  instance  of 
a  commander-in-chief  acting  by  regular  commission.  On  the 
death  of  Sloughter  in  1691,  four  months  after  his  arrival,  there 
was  no  one  in  the  province  commissioned  as  commander-in- 
chief  or  lieutenant  governor.  The  governor's  commission 
directed  that  in  such  circumstances  the  "Council  ...  do 
take  upon  them  the  Administration  of  the  Government  and  exe- 
cute this  Commission  .  .  .  and  that  the  first  Councilor 
.  .  .  Preside  in  our  said  Council  with  such  Powers  and  Pre- 
heminences  as  any  former  President  hath  used  or  enjoyed  within 
our  said  Province  or  any  other  our  Plantations  in  America  until 
our  further  Pleasure  be  known."  This  arrangement  had  been 
incorporated  in  the  act  of  the  first  assembly  ''declaring  what  are 
the  Rights  and  Privileges  of  their  Majesties  Subjects  inhabiting 
within  their  Province  of  New  York."-  Interpreting  this  arrange- 
ment in  the  sense  afterwards  explicitly  given  to  it  by  the  Lords 
of  Trade,  Frederick  Phillipse  was  entitled  to  preside  in  the  coun- 
cil. His  name  appeared  first  in  the  list  of  the  council  which 
Sloughter  was  instructed  to  call  together  on  his  arrival,  and  in 
this  list  as  given  in  the  "Documents  relating  to  the  Colonial  His- 
tory of  New  York"  the  name  of  Dudley  does  not  appear  at  all. 
Yet  Sloughter,  on  his  arrival,  describes  Joseph  Dudley  as  "the 
first  of  their  Majesties'  Council  here,"  and  it  is  known  that  Dud- 
ley's appointment  as  "Chief  of  the  Council  in  New  York"  was 
desired  by  the  king.  Smith  says  plainly  that  Dudley  had  the 
right  to  preside  in  the  council,  and  we  know  from  the  journals 
of  the  council  that  he  was  sworn  on  the  day  after  Sloughter's 
arrival.^  Whatever  the  facts  in  this  matter,  the  council  put  their 
own  interpretation  on  the  direction  to  take  the  care  of  the  govern- 
ment on  themselves,  and,  as  they  afterwards  reported,"pursuant  to 

'Col.  Doc.  V.  80-2,  89-91,  110. 
="  Col.  Doc.  III.  623.     Col.  Laws  I.  244. 

'Council  J.  I.  1-15.  Exec.  Council  Min.  VI.  1.  Smith,  130.  Col. 
Doc.  III.   685.     Cal.  Brit.   State  Papers  Domestic  Vol.  1690-91,   128. 


IN    NEW    YORK,     169I-I719.  39 

their  Majesties'  Lres  Patent  (?)  did  unanimously  declare  Major 
R.  Ingoldsby  to  be  Commander-in-Chief  until  their  Majesties' 
pleasure  shall  be  further  known  and  on  the  27th  instant  (July, 
1691)  he  was  sworn  to  execute  the  Powers  and  Authorities  con- 
tained in  their  Majesties'  said  Lres."^  By  what  color  of  authority 
they  took  this  step  does  not  appear.  Dudley's  absence  from  the 
province  at  the  time  of  Sloughter's  death  of  course  accounts  for 
his  not  acting  as  president  of  the  council,  but  the  directions  in 
that  case  called  for  the  presidency  of  Phillipse,  whose  name  stood 
next  on  the  list.^  It  may  be  that  they  made  a  distinction,  such 
as  was  afterwards  raised  on  the  death  of  Bellomont,  between 
the  right  to  preside  in  the  council  and  the  right  to  execute  the 
powers  of  the  commission  and  instructions  as  commander-in-chief. 
Throughout  this  period  the  governor  presided  at  the  meetings 
of  the  council  in  both  its  legislative  and  executive  capacity,  but 
during  the  first  session  of  the  assembly  there  are  indications  that 
the  governor  and  the  president  of  the  council  were  considered 
as  having  distinct  parts  to  play.^  But  this  would  not  justify  the 
bestowal  upon  a  person  of  the  council's  choice  of  both  the  power 
to  preside  in  the  council  and  the  power  to  execute  the  commission. 
This  latter  was,  in  the  absence  of  the  commander-in-chief,  who 
was  plainly  referred  to  as  a  commissioned  officer,  to  be  exercised 
by  the  council  itself.  From  a  technical  point  of  view  the  "dec- 
laration" of  Ingoldsby  as  commander-in-chief  would  seem  to 
be  a  coup  d'etat  quite  as  much  as  the  assumption  of  power  by 
Leisler.  The  nearest  thing  we  have  to  a  contemporaneous  view 
of  the  matter  is  Smith's  account,  which,  after  mentioning  Dud- 
ley's right  to  preside,  goes  on ;  ''but  they  committed  the  chief 
command  to  R.  Ingoldsby  .  .  .  Dudley  did  not  think  proper 
to  dispute  Ingoldsby's  authority,  though  the  latter  had  no  title. 
.  .  .  To  the  late  troubles  and  the  agreement  subsisting  be- 
tween the  Council  and  Assembly  we  must  ascribe  it  that  the  for- 
mer tacitly  acknowledged  Ingoldsby's  right  to  the  president's 
chair,  for  they  concurred  with  him  in  passing  several  laws  the 
validity  of  which  have  never  yet  been  disputed."  The  fact  that 
Ingoldsby   was   in   command   of  the   "Independent   Companies," 


'  Col.  Doc.  III.  791. 

'Lamb.   Hist,   of   N.  Y.    City   I.   396.     Col.   Doc.    III.   576,   586,   608, 
793,  836. 

'Ass.  J.  I.  2-3. 


40  PHASES    OF    ROYAL    GOVERNMENT 

would  furnish  the  party  controlling  the  "agreement  between  the 
Council  and  the  Assembly"  with  just  the  power  they  needed  over 
a  community  exhausted  but  factious.  And  their  proceeding  at 
this  time  was  merely  a  repetition  of  their  action  at  the  time  of 
Ingoldsby's  arrival  before  the  coming  of  Sloughter.  But  the 
circumstances  of  that  time  were  plainly  anomalous  and  necessi- 
tated a  certain  irregularity  in  procedure,  whereas,  the  circum- 
stances at  Sloughter 's  death,  though  tmfortunate,  were  those  of 
a  government  pacified  and  settled  on  a  regular  basis,  whose  doc- 
uments, the  commission  and  instructions,  were  now  of  recorcj 
in  the  province.  The  irregularity  was  apparently  winked  at  by 
the  home  government,  and  Ingoldsby  held  office  for  over  a  year, 
till  the  arrival  of  Fletcher.  But,  though  the  council  and  In- 
goldsby sent  a  number  of  letters  to  Secretary  Blaithwait  and  the 
Duke  of  Bolton,  there  are  no  letters  in  the  "New  York  Colonial 
Documents"  from  the  Board  or  any  Secretary  to  Ingoldsby.^ 
This  curious  episode  was  the  only  instance  of  the  succession  of  a 
commander-in-chief  to  the  powers  of  the  governor  and  its  anomal- 
ous character  has  been  sufficiently  indicated. 

This  experience  did  not  lead  to  any  change  in  the  wording 
of  those  parts  of  the  commission  and  instructions  which  provided 
for  succession  to  a  vacancy  in  the  governor's  office.  The  pro- 
vince was  to  pass  through  another  extraordinary  experience  in 
matters  connected  with  this  subject  before  the  whoie  was  put  in 
intelligible  order.  On  the  5th  of  March,  1701,  the  governor,  the 
Earl  of  Bellomont,  died,  and,  as  the  lieutenant  governor,  Nanfan, 
was  on  leave  of  absence  at  Barbadoes  and  there  was  no  one  on 
the  spot  commissioned  as  commander-in-chief,  the  opportunity 
arose  for  the  interpretation  of  w^hat  was  meant  by  the  "powers 
and  pre-heminences"  belonging  to  a  president  of  the  council. 
The  first  councilor  resident  in  the  province  was  William  Smith, 
recently  suspended  from  the  office  of  chief  justice  of  the  prov- 
ince. The  council  at  that  time  numbered  seven,  of  whom  four, 
all  Leislerians,  were  in  the  city  at  the  time,  and  three,  Smith, 
Schuyler  and  Livingston,  were  at  their  homes  in  distant  parts  of 
the  province.  Bellomont's  whole  administration  had  been  a  time 
of  violent  faction  and  it  was  alleged  that  Smith,  Schuyler  and 
Livingston  were  to  have  been  suspended  on  the  very  night  that 

'  Smith,  p.   105.     Exec.   Council   Min.   VI.  40. 


IN    NEW    YORK,    169I-1719.  4I 

Bellomont  died.  Whether  Bellomont,  if  he  had  Hved,  would  have 
been  able,  in  that  case,  to  restrain  the  fury  of  the  Leislerian  passion 
for  revenge,  it  is  impossible  to  say.  He  certainly  had  not  been 
crowned  with  success  so  far  in  his  difficult  task  of  holding  a 
steady  course  between  the  "angry  party,"  characterized  by  dis- 
regard for  the  imperial  trade  system,  and  the  ''black  party,"  con- 
cerned with  a  passion  for  revenge  upon  their  oppressors  during 
the  Fletcher  regime.  He  certainly  could  not  have  kept  them  from 
a  certain  measure  of  their  desires.  The  control  of  the  execution 
of  the  powers  of  the  commission  and  instructions  was  absolutely 
essential  to  the  realization  of  these  Leislerian  ambitions  and  when, 
on  the  arrival  of  Smith,  it  appeared  that  he  interpreted  the  powers 
of  a  president  of  the  council  to  mean  that  he  alone  had  power  to 
call  the  council  and  that  without  him  the  rest  of  the  council 
could  not  sit  and  act  as  a  government,  the  four  Leislerians  pre- 
sented views  categorically  opposed  to  this  interpretation.  They 
resolved  that,  while  the  eldest  councilor  should  preside  at  meet- 
ings, all  acts  relating  to  the  administration  of  the  government 
"should  be  signed,  acted  and  done  by  the  greater  part  of  his 
Majesties'  said  Council  met  in  Council  and  the  Government  be 
administered  in  the  name  of  his  Majesties'  Council,"  and  that 
''when  a  majority  of  them  should  agree  that  it  was  for  the  King's 
service  that  they  should  meet  and  act,  they  will  meet  and  act, 
giving  notice  to  Col.  Smith  to  meet  with  them  and  to  preside  and 
act  as  President,  which  if  he  refuses  they  will  proceed  without 
him."^ 

In  the  vigorous  controversy  which  followed,  Smith  seems  to 
have  conducted  himself  with  much  the  greater  dignity  and  mod- 
eration. His  report  of  the  dispute  to  the  Lords  of  Trade  was 
fair.  He  made  concessions,  though  with  explicit  reservation  of 
what  should  turn  out  to  be  his  rights,  which  showed  a  disposition 
to  do  everything,  short  of  surrendering  his  entire  position,  which 
might  tend  to  keep  the  peace  till  the  arrival  of  Nanfan.  And 
he  carefully  refrained  from  the  attempted  exercise  of  any  more 
power  than  was  absolutely  necessary  for  that  purpose.  The  con- 
duct of  Weaver,  however,  who  was  practically  the  Leislerian 
leader,  was  violent,  his  use  of  the  majority  vote,  as  shown  by 
the  proceedings  with  regard  to  the  journal,  was  governed  wholly 


'Col.  Doc.  IV.  849.     Exec.  Council  Min.  VIII.  2ia 


42  PHASES    OF    ROYAL    GOVERNMENT 

by  partisan  considerations;  and  his  desperation  is  indicated  by 
his  attempt  to  bribe  and  then  to  intimidate  Smith  himself.  The 
particular  power  in  the  actual  exercise  of  which  the  Leislerians 
were  chiefly  insistent  that  Smith  should  be  "concluded  by"  the 
majority  vote,  and  over  which  the  two  parties  came  to  a  dead- 
lock, was  with  reference  to  a  summons  of  a  session  of  the  assem- 
bly. As  to  this  Smith  was  inclined  to  think  that  the  assembly 
had  been  dissolved  by  the  death  of  the  governor,  and,  in  any 
case,  he  was  anxious  to  prevent  a  session  of  the  assembly  at  this 
time,  being  confident  that  the  Leislerians  intended  mischief,  and 
having  no  notion  that  they  would  be  at  all  scrupulous  in  their 
use  of  power.  Nevertheless,  though  taking  the  ground  that  there 
was  no  occasion  for  a  session,  he  did,  under  protest,  sign  procla- 
mations for  a  session  at  the  time  which  had  been  set  by  Bello- 
mont,  knowing  that,  unless  some  proclamation  were  issued,  the 
assembly  would  meet  anyway,  and  hoping  that  time  might  bring 
a  fairer  disposition  or  some  authoritative  interpretation  of  the 
meaning  of  the  commission.  The  assembly  met,  but  Smith  re- 
fused to  sit  with  the  rest  of  the  council  as  the  upper  house, 
though  sitting  with  them  for  administrative  business,  and  after 
all,  the  assembly  passed  no  acts.  It  may  be  that  the  Leislerians 
lacked  nerve  in  the  face  of  the  opinion  of  "a  great  number  of 
the  inhabitants  and  those  of  the  best  sort,  too,"  against  the  Leis- 
lerian  constitutional  theory.  The  application  of  this  theory  met 
with  another  important  check  in  the  domain  of  administration, 
for  the  business  men  of  the  city  would  not  maintain  the  credit 
of  the  government  unless  the  method  of  the  latter  were  made  to 
conform  to  the  practice  of  the  other  plantations.  Fortunately, 
no  outbreaks  of  violence  occurred  before  the  arrival  of  Nanfan, 
ten  weeks  after  the  governor's  death,  and  for  this  the  credit 
must  belong  largely  to  Smith.  Strangely  enough,  the  only  com- 
ment made  by  the  Lords  of  Trade  upon  this  affair  was  to  the 
efifect  that  they  did  not  find  "that  any  distinct  power  is  conferred 
on  a  President  separate  from  the  rest  of  the  Council."  In  his 
report  Smith  suggested  the  importance  of  making  the  terms  of 
the  commission  explicit  upon  this  point  —  "is  informed  that  the 
practice  is  different  in  diflferent  plantations  and  have  not  been 
determined  without  some  straine  and  struggle  in  all  such  Planta- 
tions who  had  never  been  under  the  like  circumstances  of  admin- 
istration."    Nevertheless  it  was  not  until  1707  that  in  an  addi- 


IN    NEW    YORK,    169I-I719.  43 

tional  instruction  to  Cornbury  direction  was  given  that  under 
such  circumstances  as  have  been  described,  the  councilor  whose 
name  is  placed  first  in  the  instructions  is  to  take  upon  him  the 
administration  of  the  government  and  ''execute  the  powers  of 
the  Commission  in  the  same  manner  as  a  Governor  or  Com- 
mander-in-Chief." This  was  certainly  an  efifective,  though  tardy, 
endorsement  of  the  correctness  of  Smith's  reasoning  and  there- 
after the  course  of  procedure  was  plain.  The  council  never- 
theless clung  to  its  own  interpretation  whenever  possible,  but 
the  matter  never  again  became  an  issue  of  importance.^ 

As  a  provincial  office  the  lieutenant-governorship  was  as 
merely  occasional  and  transitory  in  importance  as  the  vice-pres- 
idency of  the  United  States,  and  less  useful,  actually,  under 
ordinary  circumstances.  He  did  not  even  act  as  presiding  offi- 
cer in  the  council  when  the  governor  was  in  the  province  and 
in  the  case  of  both  Nanfan  and  Ingoldsby,  the  instructions 
given  by  the  governor  left  the  lieutenant  governor  in  a  posi- 
tion of  almost  quaint  impotence.-  It  happened  that  the  only 
two  lieutenant  governors  who  held  office  during  this  period  were 
officers  who  commanded  the  "Independent  Companies" ;  so  that 
there  was  at  least  something  for  them  to  do.  Under  Bellomont, 
Nanfan  was  allowed  by  instructions  from  home  a  salary  of  £200, 
one-half  the  amount  of  the  salary  of  the  governor  at  that  time, 
and  it  was  a  standing  instruction  that  during  the  absence  of  the 
governor  from  the  province,  one-half  of  the  salary  and  perquisites 
should  go  to  the  lieutenant  governor  or  commander-in-chief. 
The  exact  meaning  of  this  arrangement  was  brought  into  ques- 
tion by  Bellomont  whose  duties  as  governor  in  three  provinces 
and  captain-general  of  militia  in  five  or  six  made  frequent  and 
prolonged  absences  a  necessity.  He  complained  that  if  he  were 
considered  as  absent  from  New  York  while  still  present  in  one 
of  his  governments,  "every  Journey  will  be  very  expensive  to 
me,"  and,  "at  that  rate  my  Lieutenant  Governor  will  have  a  bet- 
ter time  of  it  than  I  shall."     The  Lords  of  Trade  ruled  accord- 


^Col.  Doc.  IV.  859.  E.  C.  M.  VII.  213-220.  Col.  Mss.  XLIV. 
90,  98.     Col.  Doc.  IV.  857-9,  887,  867,  V.  5.    E.  C.  M.  X.  465,  528. 

^  For  example,  Nanfan  was  forbidden  to  lodge  in  the  new  apart- 
ment in  the  King's  house  in  the  fort,  or  to  permit  any  one  else  to  do  so. 
Cornbury  absolutely  disdained  to  give  Ingoldsby  any  instructions  at  all ! 
E.   C.  M.  VIII.   111-13.     Col.  Doc.  IV.  1162-4. 


44  i'iiASES    OF    ROYAL    GDVii'ilK MlilsT 

ingly  that  the  Heutenant  g-overnor  should  receive  one-half  of 
the  salary  and  perquisites,  only  when  the  governor  should  be 
absent  from  all  his  governments.  When  Nanfan  succeeded  to 
the  governorship  he  was  informed  that  he  was  entitled  to  his 
salary  of  lieutenant  governor  and  to  one-half  of  the  governor's 
salary  and  perquisites,  and  that  therefore  he  was  not  to  pass 
any  act  of  assembly  which  granted  any  present  to  himself.^ 

The  situation  of  the  province  under  the  rule  of  a  lieuten- 
ant governor  was  fruitful  of  mischief.  It  was  during  Nanfan's 
administration  that  the  Leislerian  fury  was  allowed  to  run  to 
the  lengths  typified  by  the  outrageous  proceedings  of  the  Bayard 
and  Hutchins  trial,  though  apparently  Nanfan  did  not  prove  a 
wholly  pliant  tool  in  the  hands  of  the  Leislerians.  Ingoldsby, 
in  his  term  as  lieutenant  governor,  was  accused  of  being  wholly 
imder  the  influence  of  the  lately  disgraced  Cornbury.  These 
possibilities  of  mischief  seem  to  have  been  at  least  vaguely  be- 
fore the  minds  of  the  Lords  of  Trade,  for  as  early  as  1698  we 
find  them  instructing  Bellomont  that  he  is  empowered,  if  neces- 
sary, to  suspend  a  lieutenant  governor  and  to  appoint  ad  interim 
to  that  oifice,  as  in  the  case  of  councilors.  And  on  the  acces- 
sion of  Nanfan  the  Board  applied  to  him  as  lieutenant  governor 
the  limitation  imposed  on  a  president  of  council,  viz.,  not  to 
pass  any  acts  but  such  as  were  immediately  necessary.  And, 
finally,  in  1706,  the  Board  represented  to  the  privy  council  that, 
"as  the  Governor  of  New  York  does  most  reside  at  New  York, 
and  that  upon  the  occasions  of  his  being  absent  from  thence  to 
visit  the  Jersies  there  is  a  president  and  .Council  in  New  York 
for  the  despatch  of  business  there  they  are  of  opinion 
your  Majesty's  service  does  no  ways  require  that  there  be  a 
Lieutenant  Governor  of  New  York."  And  in  1709  the  presi- 
dent of  the  council  was  shut  off  from  the  two  ways  of  doing 
mischief  which  experience  had  shown  to  offer  the  greatest  temp- 
tations, by  a  prohibition  upon  passing  any  grants  of  land  as  well 
as  any  acts  but  those  that  were  immediately  necessary.^ 

Next  in  dignity  and  importance  to  the  governor  as  a  part 
of  the  executive  official  system  stands  "His  Majesty's  Council 
for  the  Province  of  New  York."  This  body  had  been  an  import- 
ant branch  of  the  government  of  the  province   from   the   very 

'  Col.  Doc.  IV.  284,  III.  686,  IV.  316-17,  415,  864. 
'Col.  Doc.  IV.  361,  864.  1174.  V.   110. 


IN    NEW    YORK,     169I-I719.  45 

beginning  and  had,  throughout  its  existence,  the  influence  nat- 
urally pertaining  to  a  body  which  had  assistant-executive,  appel- 
late-judicial and  assistant-legislative  powers.  During  the  period 
under  consideration  it  v/as  popularly  considered  to  play,  in  the 
miniature  copy  of  the  English  constitution,  the  parts  of  the 
Privy  Council  and  House  of  Lords  combined ;  and  in  its  execu- 
tive capacity  the  council  showed  its  view  of  its  position  by  a 
reference  in  the  minutes  to  the  oath  of  office  as  that  of  a  "privy 
Councillor  of  the  province."  The  privileged  position  of  a  mem- 
ber of  the  council  is  also  indicated  by  an  order  issued  in  1710, 
"on  complaints  of  some  members  that  upon  a  notion  of  the  law- 
yers that  they  are  equally  liable  to  arrest  with  other  people, 
and  some  of  them  have  been  arrested  on  vexatious  actions  to  the 
hindrance  of  their  attending  on  public  business."  The  order 
directed  that  in  case  of  demand  or  cause  of  action  against  any 
member  of  the  council,  before  arrest  should  take  place  a  dec- 
laration should  be  filed  against  him  and  if  he  refused  to  appear 
and  plead  according  to  the  ordinary  rules  of  the  court  that  then 
the  plaintiff  might  take  out  a  writ  against  him.^  In  all  three  of 
the  capacities  mentioned  above  the  purpose  of  the  constitution 
of  the  council  was  apparently  to  provide  the  representative  of 
the  crown  with  the  assistance  and  advice,  and,  in  some  points, 
the  restraint,  in  the  exercise  of  the  powers  committed  to  him  for 
the  management  of  the  province,  which  could  be  afforded  by  a 
group  of  nien  acquainted  with  its  capacities  and  personally  in- 
terested in  its  welfare.  The  admission  of  the  representatives  of 
the  people  to  a  share  in  the  legislative  work  of  provincial  gov- 
ernment in  1 69 1  operated  of  course  as  a  narrowing  of  the  sphere 
of  opportunity  which  might  be  directly  and  unrestrainedly  ex- 
ploited by  the  representative  of  the  crown  and  in  this  process 
it  was  the  council  that  lost  most.  The  career  of  the  council 
throughout  this  period  must  be  estimated  in  the  perspective  of 
the  extensive  range  and  thorough-going  character  of  its  powers 
prior  to  1691,  with  the  brief  interruption  of  the  years  1683-4. 
In  the  Charter  of  Liberties  in  1683  an  attempt  was  made  to  limit 
the  powers  of  the  governor,  assisted  by  the  council,  to  the  task 
of  ruling  and  governing  the  province  according  to  the  laws 
thereof.      But  by   the   failure  of  this   attempted   legislation,   the 

'  E.  C.  M.  IX.  16-18.  X.  575.     Col.  Mss.  XLVII.  12.  L.  30.     Smith, 
364-5. 


46  PHASES    OF    ROYAL    GOVERNMENT 

councirs  work  of  assistance  was  left  to  be  described  by  the  com- 
mission and  instructions  and  the  laws  of  the  province  were  not 
by  any  means  the  sole  measure  of  direction  of  the  exercise  of 
these  powers.  The  sphere  of  powers  and  activities  assigned  to 
the  Council  of  the  Dominion  of  New  England  by  Andros'  com- 
mission and  instructions  in  1688  was  exactly  the  same  as  that 
of  the  Council  of  New  York  under  Dongan.  But  the  brief 
exercise  of  power  by  this  organization  and  the  fragmentary 
character  of  our  knowledge  of  its  proceedings  with  regard  to 
New  York  render  this  period  unavailable  as  a  source  of  infor- 
mation on  this  subject. 

In  theory  the  composition  of  the  council  was  determined 
by  the  crown;  practically  during  this  period  the  governor  had 
the  weightiest  share  in  the  determination  of  its  membership. 
The  instructions  to  a  new  governor  contained  a  list  of  names 
of  those  whom  he  was  to  call  together  as  a  council  and  to 
whom  he  was  authorized  to  administer  the  oath  of  office.  He 
was  empowered  by  the  commission  to  suspend  a  councilor  for 
just  cause  from  sitting,  voting  and  assisting  therein,  and  the  ex- 
ercise of  this  power  was  checked  by  a  clause  in  the  instructions 
requiring  the  transmission  to  the  home  government  of  the 
reasons  for  suspension,  together  with  the  charges  and  proofs 
and  the  answer  of  the  suspended  individual  thereto.  Vacancy, 
by  reason  of  death,  removal  from  the  province,  or  suspension, 
was  to  be  signified  to  the  crown  in  order  that  the  latter  might 
appoint  to  the  vacancy ;  while  for  the  crown's  assistance  in  this 
matter,  the  governor  was  required  to  transmit  a  list  of  six  names 
of  persons  best  qualified  for  the  trust.  In  case,  however,  that 
the  number  of  vacancies  brought  the  membership  below  seven, 
the  governor  was  empowered  to  choose  enough  to  make  up 
seven,  these  to  be  to  all  intents  and  purposes  councilors  till  con- 
firmed from  home  or  till  the  constructive  vacancy  was  filled  bv 
the  appointment  of  some  one  else.  As  to  the  individuals  sought, 
they  were  to  be  of  the  principal  freeholders,  men  of  estate  and 
ability  and  not  necessitous  or  much  in  debt,  and  were  to  be 
"well  affected  to  our  government."  In  the  latter  part  of  this 
period  the  quality  of  "good  life"  was  added  to  the  requirements.^ 
The  program  thus  outlined  for  composition  of  the  council  was 

'Col.  Doc.  III.  623,  685.  V.   124. 


IN    NEW    YORK,     169I-I719.  47 

early  departed  from  and  for  reasons  which  the  home  govern- 
ment seemed  to  recognize  as  practically  urgent.  The  council 
might  be  said  to  be  continually  in  session;  rarely  was  there 
more  than  a  week  or  ten  days  between  sessions.  A  quorum  of 
five  was  required  by  the  instructions  and,  except  at  certain 
seasons  of  the  year,  it  was  the  members  resident  in  New  York 
or  the  immediate  vicinity  who  had  to  be  relied  on  to  supply  this 
number.  So  that,  for  example,  a  governor  was  likely,  as  in 
Fletcher's  case,  to  waive  the  requirement  that  he  should  make 
appointments  ad  interim  only  when  the  number  fell  below  seven, 
and  appoint  enough  to  furnish  him  with  a  working  quorum,  at 
a  time  when  the  list  of  councilors  in  the  province  was  still  clearly 
above  the  required  minimum.  Naturally,  such  appointments 
were  likely  to  be  of  men  resident  in  New  York  or  the  immediate 
vicinity.  In  the  case  of  the  appointment  of  Heathcote  by 
Fletcher,  it  is  probable  that  the  ability  "to  advance  his  private 
fortune  for  his  Majesty's  service  to  answer  an  emergency  when 
money  was  not  in  the  Treasury,"  and  the  inability  of  a  number 
of  the  then  titular  councilors  to  be  similarly  serviceable  were  the 
urgent  reasons  for  the  appointment.  The  home  government 
seems  to  have  taken  no  notice  of  the  irregularity;  but  when 
Cornbury  took  the  same  measures  he  was  cautioned  to  keep  more 
closely  to  his  instructions,  though  his  appointments  were  immed- 
iately confirmed.^ 

The  total  membership  of  the  council  at  first  varied.  Slough- 
ter's  instructions  named  twelve  ;  Fletcher's,  fifteen  ;  Bellomont's, 
thirteen ;   but  by  Cornbury's  time  the  limit  was  settled  at  twelve.^ 

As  to  the  representation  of  the  different  localities,  no  prin- 
ciple seems  to  have  been  explicitly  adopted,  but  there  were  always 
one  or  two  from  the  Albany  region,  and  most  of  the  time  one 
from  the  eastern  end  of  Long  Island ;  but  the  bulk  of  the  mem- 
bership was  always  from  the  district  easily  accessible  to  New 
York  City.  But  even  so,  the  governor  experienced  much  diffi- 
culty in  living  up  to  the  requirement  of  five  for  a  quorum,  and 
Cornbury  urged  that  attention  be  particularly  directed  to  that 
feature  of  the  situation  in  appointments  to  the  council.  In  1698 
a  clause  was  inserted  in  the  instructions  providing  for  suspen- 
sion of  any  member  of  the  council  who  wilfully  absented  himself 

'  Col.  Doc.  IV.  1136-7,  1156. 
'  Ibid.  V.  470. 


48  PHASES    OF    ROYAL    GOVERNMENT 

without  just  excuse  when  duly  summoned  and  who  persisted 
therein  after  admonition.  And  in  the  instructions  to  Hunter  it 
was  provided  that  if  a  councilor  were  absent  from  the  province 
without  leave  from  the  crown  for  more  than  a  year  his  place 
should  become  vacant.  Hunter  suggested  the  appointment  of 
"supernumerary  Councilors,"  but  it  did  not  meet  with  favor.^ 
There  was  always  a  certain  element  of  ex  officio  membership. 
The  collector  and  receiver  general  was  always  a  member,  but 
the  Lords  of  Trade  took  pains,  in  confirming  the  appointment  in 
one  case,  to  disclaim  any  necessary  connection  between  the  offices. 
Though  the  commission  of  the  Lords  of  the  Treasury  to  Byer- 
ley,  as  collector,  in  1703,  recommended  his  admission,  Cornbury 
refused  to  nominate  him,  and  he  was  not  appointed  till  171 1. 
Bellomont  regarded  it  as  highly  desirable  that  the  secretary  of 
the  province  should  be  a  member,  but  this  was  not  the  case  till 
1 71 6,  when  Clarke,  who  had  been  secretary  for  thirteen  years, 
was  appointed.  During  the  whole  of  the  period,  the  chief  jus- 
tice and,  during  the  administrations  of  Bellomont  and  of  Corn- 
bury,  the  attorney-general,  were  usually  members.  During  Corn- 
bury's  administration  we  find  R5mer,  the  royal  engineer,  a  mem- 
ber;  but  he  was  so  seldom  in  the  province  that  his  member- 
ship hardly  counted.  Colonel  Quary,  surveyor-general  of  the 
customs,  was  empowered  to  be  a  councilor  during  his  stay  in 
each  province  where  his  business  called  him ;  but  it  does  not 
appear  that  he  was  regularly  sworn  in  in  New  York.^  Under 
the  circumstances  of  difficulty  in  getting  a  quorum  which  have 
already  been  referred  to,  it  is  not  surprising  that  the  governor 
should  come  to  depend  on  the  official  portion  of  the  .council 
membership  for  attendance ;  though  it  is  to  be  observed  that 
this  official  element  did  not  become  formidable  till  the  latter 
part  of  the  period. 

This  brings  us  to  the  dependence  of  the  composition  of  the 
council  on  the  governor's  use  of  his  power  of  suspension.  In 
the  ordinary  course  of  aflfairs,  when  a  councilor  died  or  removed 
from  the  province,  the  governor  nominated  a  successor,  admitted 
him  to  the  council  till  the  pleasure  of  the  crown  should  be 
known,  and  sent  the  name  home  for  confirmation.     It  is  impos- 


Col.  Doc.  V.  56,  470,  124,  IV.  856.    E.  C.  M.  X.  186. 
Col.  Doc.  IV.  536,  1136-7,  V.  470.     E.  C  M.  XI.  352. 


IN    NEW    YORK,     169I-I719.  49 

sible  to  say  how  strictly  the  governor  kept  to  the  lists  of  eligi- 
bles  which  the  instructions  required  him  to  furnish  to  the  home 
government ;  but  it  is  to  be  presumed  that  they  were  pretty 
closely  adhered  to,  for  there  appear  only  three  cases  of  refusal 
to  confirm.  One  was  so  entirely  exceptional  as  to  lack  signifi- 
cance. The  two  others  were  rejected  because  they  had  no  estate 
in  the  province,  though  they  were  prominent  citizens  of  New 
Jersey.^ 

As  has  been  indicated,  after  the  province  had  come  down 
to  settled  ways  of  living,  the  usual  reason  for  changes  in  mem- 
bership was  death  or  departure  from  the  province.  But  in  the 
period  prior  to  the  close  of  Lovelace's  administration  in  1709, 
there  were  two  occasions  when  the  governor's  power  of  removal 
was  used  with  much  freedom,  and  both  of  the  resulting  upheavals 
occurred  at  the  beginning  of  a  new  governor's  term.  Bellomont's 
instructions  named  thirteen  councilors.  Of  these,  one  had  died 
before  Bellomont's  arrival,  one  was  "superannuated,"  one,  being 
non-resident,  refused  to  accept ;  and  when  for  different  reasons 
the  governor  had,  within  six  months,  suspended  eight,  his  nom- 
ination of  five  new  members,  which  practically  re-constituted  the 
body,  was  entirely  within  the  limits  of  the  narrowest  interpre- 
tation of  his  powers.  As  for  three  of  the  eight  persons  sus- 
pended, he  gave  as  reasons,  their  complicity  in  dealings  with 
pirates,  and  as  for  the  other  five,  he  described  the  act  as  "abso- 
lutely necessary  for  his  Majesty's  service,"  —  they  were  "always 
resty  and  perverse  in  everything  I  propose  .  .  .  always 
caballing  and  contriviiir:  to  make  tlie  government  uneasy  to 
me."  The  truth  is,  that,  as  is  well  known,  the  Earl  had  come 
full  of  zeal  for  the  suppression  of  piracy  and  evasion  of  the  acts 
of  trade  and  had  early  discovered  that  the  council,  as  well  as  his 
predecessor,  were  all  pretty  equally  involved  in  the  scandal.  It 
is  hardly  to  be  doubted  that  all  of  the  eight  suspended  coun- 
cilors had  been  involved  in  the  "system" ;  but  Bellomont's  frank 
avowal  of  the  partisan-political  character  of  his  reasons  for 
suspension  could  easily  lend  color  to  the  accusations  of  his  ene- 
mies that  these  removals  were  upon  frivolous  pretences,  "in 
order  to  procure  Sheriffs  and  consequently  an  Assembly  to  his 
liking."     It  was  unfortunate,  too,  that  three  out  of  five  of  those 

'Col.   Doc.   IV.  965. 
4 


5^  PHASES    OF    ROYAL    GOVERNMENT 

who  were  appointed  to  the  vacancies  were  prominent  Leisler- 
ians,  accused  of  lacking  the  estate  and  financial  ability,  which 
was  considered  an  important  requisite.  Nevertheless  we  find  all 
but  one  of  those  appointed  by  Bellomont  during  his  term  in  the 
list  of  councilors  brought  over  by  Cornbury.^ 

This  list  was,  however,  soon  disturbed  by  the  second  great 
shaking-up  in  membership.  The  nearly  complete  capture  of  the 
organization  of  government  and  the  revengeful  use  of  the  power 
thus  gained  by  the  Leislerians  during  the  interval  between  Bello- 
mont and  Cornbury  had  led  them  into  a  variety  of  excesses, 
the  whole  temper  and  personal  passion  of  which  was  nucleated 
in  the  affair  of  Bayard  and  Hutchins.  Cornbury  promptly 
espoused  the  cause  of  the  Anti-Leislerians,  and  with  entire  dis- 
regard of  his  instructions,  formal  and  otherwise,  lent  himself 
to  the  designs,  equally  vengeful,  of  the  party  which  had  lately 
been  the  sufferers.  He  immediately  suspended  from  the  council, 
not  only  those  who  had  been  actively  identified  with  the  irregu- 
larities of  the  trial,  but  also  those  known  to  be  of  Leislerian 
tendencies.  He  frankly  assigned  complicity  with  the  Bayard- 
Hutchins  trial  as  his  reason  for  the  suspension,  and  it  was  ap- 
proved by  the  crown.  As  this  reduced  the  number  of  the  council 
to  just  seven,  there  was  technically  no  vacancy  to  which  to  nom- 
inate, nevertheless  two  were  admitted  and  were  apparently  con- 
firmed, as  their  names  appeared  in  the  list  of  the  council  in  the 
new  instructions  to  Cornbury  in  1703.  Cornbury 's  procedure  in 
the  case  of  these  suspensions  was  so  neglectful  of  the  program 
laid  down  by  the  instructions,  as.  to  defeat  his  own  ends  in  the 
long  run.  One  of  the  surviving  councilors  suspended  by  him 
was  included  in  the  list  in  Lovelace's  instructions,  whereupon 
two  of  the  other  survivors  made  vigorous  representations  as  to 
the  injustice  of  leaving  them  out  of  such  a  vindication,  and  were 
able  apparently  to  satisfy  the  council  that  the  requirement  laid 
upon  the  governor  to  furnish  a  suspended  councilor  with  a  copy 
of  the  reasons  had  not  been  complied  with  and  that  the  facts 
should  be  represented  to  the  home  government.  They  professed 
that  they  were  neither' ''envious  nor  soliciting  to  be  restored  to 
that  Honourable  Post,"  but  only  anxious  that  they  "may  no 
longer  be  looked  upon  as  scandalous  persons  by  the  Home  Gov- 


Col.  Doc.  IV.  399,  620.    E.  C.  M.  IX.  226. 


IN    NEW    YORK^     169I-I719.  5I 

ernment."  Nevertheless  in  the  hst  of  the  council  in  Hunter's 
instructions  their  names  appeared  "in  their  places  according  to 
their  precedency  they  .  .  .  had"  formerly,  "as  has  usually 
been  done  in  like  cases. "^ 

It  is  perhaps  because  of  the  wholesale  changes  for  partisan 
political  reasons,  as  carried  on  by  Bellomont  and  Cornbury,  that 
we  find  the  instructions,  as  drawn  up  in  Hunter's  time,  altered 
to  provide  for  a  better  enforcement  of  the  requirement  of  the 
Hst  of  six  eligibles,  for  strict  conformity  to  the  established  num- 
ber of  formal  membership,  and  for  transmission  to  the  Lords  of 
Trade  or  to  the  Secretary  of  State  of  justification  for  not  enter- 
ing the  reasons  for  suspension  of  a  councilor  on  the  council 
books,  "in  case  you  do  not  so  enter  them."  Whether  for  this 
reason  or  because  of  the  abler  and  more  straightforward  char- 
acter of  the  governors  who  succeeded  Cornbury,  there  were  no 
more  changes  of  membership  by  the  wholesale. - 

The  requirement  of  the  commission  and  instructions,  that 
persons  nominated  to  the  council  should  be  of  the  principal 
freeholders,  men  of  estate  and  ability,  and  the  practical  require- 
ment for  quorum  purposes,  brought  it  to  pass  that  the  mercantile 
interest  of  New  York  City  had  a  preponderating  influence  in  the 
body.  At  times  this  was  of  serious  consequence  for  the  province. 
Bellomont  reports  himself  puzzled  "who  to  recommend  for  a  sup- 
ply of  Counsellors  unless  I  should  send  the  names  of  merchants," 
and  the  Lords  of  Trade,  probably  on  his  representation,  report 
great  difficulty  in  "getting  men  for  the  Council  free  from  the 
practices  that  ought  to  be  reformed."  Appreciation  of  the  situ- 
ation does  not  seem,  hovv^ever,  to  have  made  much  difiference  with 
the  practice  of  the  Lords  of  Trade  in  follovving  the  recommenda- 
tions of  the  governor  pretty  closely.  The  council  continued 
to  contain  representatives  of  the  great  landed  interest,  like  the 
Van  Rensselaers  and  the  Smiths  of  Long  Island ;  of  the  wild  land 
and  fur-trading  interest,  like  the  Schuylers  and  Livingstons ;  of 
the  mercantile  interest  reaching  out  into  land-holding,  like  the 
Phillipses  and  Van  Cortlandts ;  and  of  the  strictly  city  and  mer- 
cantile interest,  like  Van  Dam.^ 


'  E.  C.  M.  IX.  226,  296,  X.  267,  286-7.     Col.  Mss.  LIII.  14.     Col.  Doc. 
V.  123. 

''Col.  Doc.  V.  124. 
'Col.  Doc.  IV.  396,  719. 


52  PHASES    OF    ROYAL    GOVERNMENT 

Tlie  executive  duties  of  the  council  Vv^ere  in  the  nature  of 
general  assistance  and  advice  to  the  governor  but  the  commis- 
sion and  instructions  specified  certain  activities  of  the  governor 
as  requiring  the  participation  of  the  council  in  some  Vvay  or  otlier. 
The  consent  of  the  council  v/as  required  for  a  declaration  of  war 
against  the  Indians  on  emergent  occasions,  and  that  of  the  coun- 
cil and  of  the  assembly  for  the  making  of  laws.  The  advice 
and  consent  of  the  council  was  required  for  the  calling  of  assem- 
blies, the  erection  of  courts,  the  issue  of  warrants  for  the  pay- 
ment of  public  money,  for  regulation  of  fees,  for  appoii]ting 
markets,  fairs  and  ports,  and,  in  the  latter  part  of  the  period,  for 
commissioning  judges  and  justices  of  the  peace  and  for  execut- 
ing "Articles  of  War  or  other  Law  Martial"  on  the  inhabit- 
ants. The  advice  of  the  council  was  required  for  action  in  ref- 
erence to  fortifications  and  in  regulations  concerning  "that  free- 
dom which  commerce  ought  to  have,"  and  for  the  granting  of 
lands,  though  in  this  last  matter  change  was  afterwards  made  so 
as  to  require  consent  as  well  as  advice.  Finally  the  assistance  of 
the  council  was  required  to  "find  out  the  best  means  to  facilitate 
and  encourage  the  Conversion  of  Negroes  and  Indians"  and  "to 
provide  for  the  raising  and  building  of  Publique  Work  Houses."^ 

For  the  execution  of  these  powers  the  council  seems,  dur- 
ing this  period,  to  have  had  no  organization  separate  or  distin- 
guishable from  its  organization  as  the  upper  house  of  the  leg- 
islature. Items  of  legislative  business  occur  in  its  minutes  inter- 
mingled with  executive  items ;  so  that,  for  example,  we  have  in 
the  "Journal  of  the  Legislative  Council"  a  record  of  the  approval 
of  an  answer  of  the  governor  to  an  address  from  the  assembly 
on  the  subject  of  amendments  proposed  by  the  governor  and 
council  to  a  bill  from  the  assembly ;  also  of  advice  given  by  the 
council  to  the  governor  to  pass  a  certain  bill  in  the  form  in  which 
they  in  their  legislative  capacity  have  amended  it.  The  governor 
presided  at  their  sessions.  Only  occasionally,  and  this  not  until 
the  latter  part  of  Cornbury's  term,  does  the  journal  give  us  any 
information  concerning  the  votes  of  members. - 

The  frequency  of  sessions  and  the  volume  of  business  fall 
off  very  sharply  in  the  latter  part  of  the  period.  During  the 
administrations  of  Fletcher  and  Bellomont  we  find  weeklv  ses- 


'  Col.  Doc.  III.  623,  685,  818,  827,  IV.  266,  284,  V.  92,  124. 
'Journal  of  Leg.   Council.     I.  91,   107. 


IN     NEW     VORK^     169I-I719.  53 

sions  in  the  very  dullest  times,  which  were  from  the  middle  of 
July  to  the  middle  of  September,  and  from  December  to  March. 
In  the  spring  and  autumn,  sessions  averaged  two  or  three  weekly, 
and  often  there  were  daily  sessions  for  weeks  at  a  time.  There 
was  a  tendency  for  sessions  to  be  numerous  at  the  beginning 
of  a  new  governor's  administration.  The  first  part  of  Corn- 
bury's  administration  shows  an  increase  in  number  of  sessions 
and  volume  of  business  over  the  preceding  year  and  a  half,  but 
there  is  a  decided  falling  ofif  in  the  latter  part ;  while  in  Hunter's 
administration  a  lower  level  is  reached  than  was  the  case  in  any 
part  of  Cornbury's  term.  And  in  Hunter's  time  the  business  is 
less  miscellaneous  in  character  —  is  easily  classified  under  the 
lieads  of  judicial  affairs,  land,  accounts  and  warrant-issue. 

As  to  compensation  by  way  of  salary,  we  have  the  testimony 
of  Hunter,  before  the  Lords  of  Trade  in  1720,  that  the  council 
"aKvays  claimed  an  allowance  as  well  as  the  Assembly  in  pro- 
portion to  the  Number  of  days  they  attended  the  Publick  Service 
in  a  Legislative  Capacity,  though  that  Allowance  was  never  paid 
them  before  the  passing  the  two  late  Acts  for  paying  the  Publick 
Debts  of  the  Province."     (1714  and  1717).^ 

As  to  relations  between  the  governor  and  council  in  the 
ordinary  discharge  of  business,  the  commission  and  instructions 
required  that  the  council  should  be  allowed  freedom  of  debate 
and  vote  in  all  things.  Cornbury  was  accused,  in  letters  of  com- 
plaint sent  home,  of  browbeating  the  councilors  and  not  allowing 
them  freedom  of  debate.  He  informed  them  of*  this  and,  being 
left  to  themselves,  they  unanimously  declared  their  ignorance  of 
any  such  denial  of  freedom  and  caused  their  declaration  to  be 
entered  on  the  records.  The  general  circumstances  of  the  admin- 
istration, however,  rob  this  formal  vindication  of  convincing 
power.  Fletcher  was  believed  by  Bellomont  to  have  been  guilty 
of  undue  influence  of  another  kind  —  "so  managed  the  Council 
here  by  gratifications  of  grants  of  land,  connivance  at  their  un- 
lawful trade,  etc.,  .  .  .  that  on  perusal  of  the  Council  books, 
I  do  not  find  that  they  would  contradict  him  but  joined  with 
him  in  almost  everything  that  was  proposed  to  them  altho'  never 
so  extra  judicial. "^     Naturally,  anything  like  adequate  proof  of 

'  Col.  Doc.  V.  552. 

^E.  C.  M.  X.  250.     Col.  Doc.  IV.  320. 


54  PHASES    OF    ROYAL    GOVERNMENT 

this  condition  it  is  impossible  to  obtain  from  merely  formal  rec- 
ords and  from  the  indignant  letters  of  Fletcher's  successor.  But 
examination  of  the  council  minutes  bears  out  Bellomont's  charges 
of  a  complete  agreement,  or  —  what  was  for  practical  purposes 
just  as  effective  —  acquiescence  in  Fletcher's  proceedings;  and 
of  pernicious  activity  in  land  grants  in  which  members  of  the 
council  unblushingly  participated  on  a  great  scale.  As  to  the 
general  position  of  the  council  in  the  government,  consideration 
may  be  fitly  postponed  till  after  a  survey  in  the  following  chap- 
ter of  the  position  and  powers  of  this  same  body  in  its  legislative 
capacity. 

The  other  executive  officials  in  the  province  were  at  first 
wholly  under  the  power  of  the  governor,  though  the  commission 
and  instructions,  after  lodging  the  appointing  power  generally 
in  the  governor's  hands,  required  that  removal  from  office  should 
be  for  cause  signified  home,  and,  particularly  that  commissions 
to  judges  and  justices  of  the  peace  should  not  contain  limitations 
of  time.  The  commission  and  instructions  further  reserved  the 
appointment  to  offices  under  the  Great  Seal  of  England  —  "patent 
places"  —  to  the  crown,  but  allowed  to  the  governor  power  of 
suspension  and  ad  interim  appointment,  as  in  the  case  of  other 
officers.  In  Hunter's  instructions  the  consent  of  the  council  was 
required  in  making  appointments  to  offices  connected  with  the 
administration  of  justice.  All  officers  were  to  be  aiding  and 
assisting  to  the  governor  in  the  execution  of  the  powers  of  the 
commission,  and  the  governor  was  forbidden  to  allow  any  person 
to  execute  more  than  one  office  by  deputy.^ 

With  respect  to  the  "patent  places,"  which  were,  besides  the 
councilorships,  the  offices  of  secretary  of  the  province,  the  collector 
and  receiver  general,  and  for  most  of  the  period  the  Admiralty 
Court,  it  is  sufficient  to  observe  that  the  control  over  the  filling 
of  these  offices  was  not  practically  in  the  hands  of  the  governor 
as  was  the  case  with  the  councilorships.  The  collector  and 
receiver  general  was  subject  to  instructions  from  the  commis- 
sioners of  the  customs  in  England  and  was  more  than  once  at 
cross  purposes  with  the  governor.  The  experience  of  the  prov- 
ince ran  through  the  combinations  of  a  lax  governor  and  a  cor- 
rupt collector,  Fletcher  and  Brooke;  a  zealous  governor,  Bello- 


'Col.  Doc.  III.  623,  685,  V.  124. 


IN    NEW    YORK^     169I-I719.  55 

mont,  and  this  same  corrupt  collector ;  a  corrupt  governor,  Corn- 
bury,  and  a  strict  and  active  collector,  Byerley;  with  the  result 
of  frequent  suspensions  of  the  collector  and  consequent  disputes 
over  accounts,  restorations  with  new  disputes  over  the  new  trans- 
fer of  accounts,  and,  in  general,  an  intolerable  confusion  in  all 
financial  and  accounting  relations,  which  made  an  important  ele- 
ment in  the  development  of  the  assembly's  financial  powers.  It 
was  not  until  Hunter's  time  that  harmonious  and  efficient  relations 
between  the  governor  and  collector  became  a  regular  feature  of 
provincial  life.  Bellomont  complained  loudly  of  the  inefficiency 
of  the  person  whom  he  found  holding  office  as  secretary  and  had 
evidently  made  arrangements,  in  England  before  coming  over, 
to  have  the  office  filled  to  his  liking;  but  his  man  had  disap- 
pointed him.  He  had  high  ideals  for  the  office  —  "should  be  the 
Governor's  right  hand  man,"  able  to  canvass  accounts,  etc.  —  but 
he  was  unable  to  get  these  ideals  realized.^  Till  Bellomont's  time 
it  had  been  customary  for  the  secretary  to  hold  also  the  office  of 
clerk  of  council,  executing  its  duties  by  deputy;  and  also  the 
offices  of  register  and  examiner  of  the  court  of  chancery.  But 
Bellomont  was  very  clear  in  his  mind  as  to  the  iniquity  of  hold- 
ing office  by  deputation,  and  suspended  the  secretary's  deputy. 
But  after  the  appointment  by  the  crown  of  George  Clarke  as 
secretary,  in  1703,  the  offices  of  secretary  of  the  province  and 
clerk  of  the  council  were  by  order  of  the  governor  in  1705  re- 
united.^ 

There  was  comparatively  little  office-holding  by  deputy. 
The  governors,  however,  experienced  much  annoyance  from  per- 
sons who  were  appointed  in  England  to  office  in  New  York,  but 
who  delayed  their  sailing  for  an  unreasonable  time  after  appoint- 
ment. More  than  once  such  individuals  succeeded,  against  the 
efforts  of  the  governor,  in  obtaining  payment  of  salary  for  the 
period  between  their  appointment  and  their  arrival  in  the  prov- 
ince.^ 

The  other  executive  officials  of  the  province  were  appointed 
and  commissioned  by  the  governor,  and  the  salaries,  as  well  as 


'  Col.  Doc.  IV.  536. 

'Col.   Mss.  XLV.   IIG.     E.   C.  M.   IX.  78,  300,  502.     Col.   Doc.   IV. 
925. 

'  E.  C.  M.  VIII.  286-8.    Col.  Doc.  IV.  855. 


$6  PHASES    OF    ROYAL    GOVERNMENT 

those  of  the  patent  officers,  were  estabhshed  on  the  provincial 
revenue,  the  governor  being  instructed  to  regulate  all  salaries  and 
fees.  The  most  important  of  these  officials  were  the  Justices  of 
the  Supreme  Court,  the  Attorney  General,  Naval  Officer,  Clerk 
and  Messenger  of  the  Council,  Surveyor  General,  "The  Gentle- 
men at  Albany  appointed  to  manage  the  Indian  Afifairs,"  the 
Custom-house  officers,  Public  Printer,  Justices  of  the  Peace,  and 
Sheriffs  in  the  Counties,  and  the  Mayors  of  the  Cities  of  New 
York  and  Albany.  In  the  early  part  of  the  period  there  are  a 
number  of  instances  of  the  creation  of  special  offices,  usually 
for  doubtful  or  partisan  purposes  and  filled  by  creatures  of  the 
governor  or  of  a  triumphant  faction.  Examples  of  this  are  to  be 
found  in  the  office  of  Accountant  General  and  of  Secretary  at 
War,  created  by  Fletcher  and  filled  by  the  disreputable  Honan.^ 
Another  example  is  the  office  of  Solicitor  General,  created  by 
Nanfan  at  the  time  of  the  Bayard  and  Hutchins  trial,  when  the 
attorney  general  blocked  the  plans  of  the  Leislerians  by  an  opin- 
ion hostile  to  their  course.  It  was  filled,  significantly,  by  Weaver, 
the  active  leader  of  the  Leislerians  at  this  time.  At  this  period, 
also,  the  office  of  "Corrector  of  the  Presse"  was  set  up  and  filled 
by  Gouverneur,  a  personage  of  partisan  significance  equal  almost 
to  Weaver.  The  office  of  Escheator  General  also  appears  in 
these  last  desperate  hours  of  Leislerian  opportunity.  It  was 
created  apparently  for  the  purpose  of  facilitating  the  confiscation 
of  Robert  Livingston's  estate,  and  at  the  same  time  providing 
for  one  Cosens,  another  professional  Leislerian  office  holder. 
For  all  salaried  offices  the  governor  found  no  opposition  from 
the  council  in  ordering  a  salary  paid  out  of  the  provincial  rev- 
enue ;  but  in  none  of  these  cases  did  the  offices  remain  established 
long  enough  to  make  a  permanent  impression  on  the  official 
system  of  the  province  during  the  period.- 

Bellomont's  program  as  general  overseer  of  the  official  system 
was  sufficiently  ambitious.  'T  take  a  great  deal  of  pains  to  serve 
the  King  myself  and  I  will  oblige  all  other  officers  in  the  Govern- 
ment to  take  the  same  pains  in  their  respective  employments  or 
I  will  turn  them  out  and  apply  home  for  new  ones  in  their  places." 
He  did  apply  home  a  good  deal  for  office-holding  material,  his 


'  Col.  Doc.  IV.  421. 

'Col.  Doc.  IV.  974.    E.  C.  M.  VIII.  344,  308. 


IN    NEW    YORK^     169I-I719.  57 

Opinion  of  the  abilities  and  honesty  of  New  Yorkers  being  rather 
low.  He  made  particularly  strong  representations  as  to  the  low 
state  of  the  legal  profession,  and  succeeded  in  getting  a  judge 
and  an  attorney  general  appointed  from  home.  The  chief  justice 
received  at  first  an  allowance  from  the  Treasury  but  during  the 
disputes  in  Cornbury's  time  arising  from  the  Bayard  and  Hutch- 
ins  affair,  the  payment  seems  to  have  beon  discontinued.  In  the 
case  of  the  attorney  general  a  custom  grew  up  of  requiring  a 
certificate  of  ability  from  the  Justices  of  the  Courts  at  Westmin- 
ster ;  but  this  was  not  absolutely  essential,  if  the  crown  chose  to 
forego  the  requirement.  The  payment  of  an  allowance  from 
England  seems  in  like  manner  to  have  depended  on  the  favor 
of  the  crown. ^ 

There  are  no  instances  of  the  control  of  executive  officers 
by  the  assembly  until  the  struggle  over  the  right  to  appoint  a 
"Country  Treasurer,"  for  the  custody  of  funds  raised  for  extra- 
ordinary uses,  outside  the  support  of  government.  From  this 
time,  i.  e.,  1706,  on,  we  find  the  assembly  increasing  the  number 
of  officers  immediately  dependent  on  it;  as,  for  example,  the  com- 
missioners of  the  excise,  the  tonnage  officer,  officials  charged 
with  the  custody  of  funds  arising  in  the  manner  indicated  by  their 
titles.  As  for  control  of  the  whole  executive  official  system,  the 
assembly's  attempts  in  this  direction,  through  its  struggles  for 
control  of  fees  and  for  annually  renewed  grants  of  revenue,  with 
appropriations  of  salaries,  form  a  separate  story  and  will  be  de- 
scribed in  a  subsequent  chapter. 

From  the  foregoing  survey  it  becomes  apparent  how  com- 
pletely the  executive  system  of  the  province  and  the  office  of  the 
governor  as  crown  agent  were  merged.  It  was  true,  as  a  mat- 
ter of  abstract  theory,  that  the  governor  acted  in  a  dual  capacity. 
Actually,  his  powers  and  his  relations  with  the  strictly  provincial 
executive  officers  were  such  as  to  be  in  exercise  very  difficult  to 
distinguish.  As  the  constitutional  development  of  the  province 
was  inextricably  involved  with  the  contests  between  the  gov- 
ernors and  assemblies,  this  circumstance  is  of  profound  signifi- 
cance. 


Col.  Doc.  IV.  287,  442,  514-6,   1142,  V.  599,  V.  49,  70,   161. 


CHAPTER  III.     THE  LEGISLATURE. 

The  legislature  of  the  province,  as  constituted  in  1691,  had 
one  body  oi  precedents  as  a  basis  —  the  representative  assembly 
of  the  last  two  years  of  Charles  II.  In  1683  the  Duke  of  York, 
as  proprietor,  had,  contrary  to  his  inclinations  but  counselled  by 
considerations  of  expediency,  instructed  Governor  Dongan  to 
call  an  assembly  composed  of  representatives  from  every  part  of 
his  government,  to  consult  with  himself  and  the  council  as  to 
what  laws  were  fit  and  necessary  to  be  made.  The  instructions 
were  detailed  in  character  and  in  accordance  with  them  two 
assemblies  were  summoned ;  the  first  holding  two  sessions,  one 
in  October,  1683,  at  which  fifteen  acts  were  passed,  and  one  in 
October,  1684,  at  which  thirty-one  acts  were  passed.  The 
second  assembly  met  in  October,  1685,  and  passed  six  acts  and 
considered  four  more.  The  output  of  these  sessions  was  com- 
prehensive in  character,  ranging  from  a  Charter  of  Liberties  to 
a  Bill  concerning  Swine. ^  It  is  probable  that  the  fundamental 
character  of  the  Charter  of  Liberties  helped  to  confirm  the  duke 
in  his  previously  expressed  distrust  of  such  assemblies  and  made 
all  the  more  grateful  to  him  the  opportunity  to  remodel  the  con- 
stitution of  the  province  afforded  by  his  accession  to  the  throne. 
At  all  events,  the  Charter  of  Liberties,  though  formally  con- 
firmed by  him  as  proprietor,  and  this  confirmed  instrument  all 
but  dispatched  to  his  governor,  was  disallowed  by  the  same  in- 
dividual as  king.  By  the  new  commission  in  1686,  Dongan  was 
given  "full  power  and  authority  with  the  advice  and  consent  of 
the  Council  ...  to  make  .  .  .  laws  for  the  .  .  . 
peace,  welfare  and  good  government  of  the  Province  and  of  the 
people  and  inhabitants  thereof,"  and  was  instructed  to  "observe 
in  the  passing  of  Laws  that  the  Stile  of  Enacting  the  same  — 
By  the  Governor  and  Council  —  bee  henceforth  used  and  noe 
other."  The  legislative  activity  of  the  council  under  Dongan, 
till  July,  1688,  was  comparatively  slight  but  it  included  measures 
for  continuing  the  revenue,  raising  taxes,  and  regulating  fees, 
as  well  as  proceedings  having  to  do  with  more  general  interests, 
such  as  naturalization,  the  christianization  of  negroes  and  the 

^  J.  of  L.  C.  pp.  xii-xv.     Col.  Laws  I.   111-177. 

(58) 


IN    NEW    YORK^     169I-I719.  59 

adoption  of  the  English  language  for  legal  instruments.  Of  the 
proceedings  having  reference  to  New  York  which  emanated  from 
Andros'  Council  for  the  Dominion  of  New  England,  we  know 
practically  nothing.  The  assembly  called  by  Leisler,  though  from  ^ 
the  fact  of  its  summoning  highly  significant  of  the  ideals  of  that 
movement,  contributed  very  little,  if  anything,  to  the  development 
of  representative  institutions.  The  Leislerians  professed  to  be 
guided  by  the  Charter  of  Liberties  but  felt  themselves  practically 
forced  to  a  procedure  very  far  removed  in  spirit  from  the  pro- 
visions of  that  document.  Our  sources  for  this  assembly  are 
very  slight,  but  the  titles  of  the  bills  passed  in  the  brief  time  it 
was  allowed  to  sit  reveal  a  partisan  and  oppressive  character.* 
The  settlement  of  the  government  of  New  York  made  by 
the  government  of  William  and  Mary  provided  once  more  — 
and  this  time  permanently  —  for  participation  in  the  work  of 
legislation  by  the  representatives  of  the  people.  The  passages 
of  the  commission  and  instructions  to  Sloughter  which  bear  on 
this  point  set  up  again  practically  the  legislative  system  that  was 
authorized  by  the  Dongan  instructions  in  1683,  and  show  no 
trace  of  influence  from  the  Charter  of  Liberties.  The  only  differ- 
ence lay  in  the  requirement  of  the  Test  from  the  assembly  of  1691 
and  in  the  omission  of  the  clauses  requiring  that  all  laws,  unless 
temporary  in  purpose,  be  made  indefinite  and  without  hmitation 
of  time,  and,  finally  that  laws  be  agreeable  to  those  of  England. 
According  to  this  system  the  governor  was  empowered  to  sum- 
mon general  assemblies  in  accordance  with  the  usage  of  other 
plantations,  and,  with  the  consent  of  the  council  and  this  assembly, 
to  make  laws  which  were  to  be  sent  home  within  three  months 
for  approval  or  disallowance.  The  governor  was  to  enjoy  a 
''negative  voice"  in  the  passing  of  laws  and  was  empowered  to 
adjourn,  prorogue  and  dissolve  the  assembly.  He  was  further 
instructed  not  to  pass  acts  of  a  certain  character  and  to  use  all 
efforts  for  the  passage  of  certain  other  acts,  and  the  tendency 
was  for  instructions  from  home  with  regard  to  legislation  to  - 
increase.  The  whole  legislative  system  may  be  said  to  have  con- 
sisted of  four  parts,  (a)  the  privy  council  in  England,  with 
powers  of  confirmation  or  repeal  over  the  product  of  the  colonial 
legislative  activity;     (b)    the  governor  in  the  province,  with  a 


*      '  J.  of  L.  C.  pp.  viii-xxv.  Col.  Doc.  III.  369.     Brodhead,  II.  416. 


60  PIIAiES    OF    ROYAL    GO\'EiiNMENT 

"negative  voice"  upon  the  measures  agreed  upon  by  the  two 
houses;  (c)  the  council  in  its  legislative  aspect,  performing  the 
work  of  an  upper  house ;  and  (d)  the  house  of  representatives 
of  the  "assembly,"  that  of  a  lower  house.  The  title  "assembly" 
became  a  matter  of  dispute  between  the  council  and  the  lower 
house  in  the  course  of  the  struggle  for  the  right  to  appoint  a 
CountryTreasurer,  in  the  years  1703-6.  In  the  particular  matter 
under  dispute,  viz.,  the  style  to  be  used  in  the  enacting  clause  of 
a  bill,  the  lower  house  won  its  point.  The  contention  of  the 
council  was  for  a  continuation  of  the  form  followed  up  to  that 
time,  which  contained  an  enumeration  of  the  participating  bodies 
in  the  phrase  "the  Governor,  Council  of  this  Province  and  Rep- 
resentatives in  General  Assembly  convened."  On  this  the  council 
insisted  for  the  reason,  that  the  general  assembly  was  a  body 
composed  of  these  several  members,  which  were  jointly  the 
legislative  power  in  the  province.  The  council  also  adduced  the 
practice  of  the  parliament  of  England.  The  lower  house  in  re- 
ply was  able  to  make  the  point  that  in  the  letters  patent  from 
the  crown  "which  the  House  are  humbly  of  opinion  is  the  Meas- 
ure of  the  Powers  of  this  Government  and  the  Rules  of  the 
People's  Obedience,"  all  reference  to  assemblies  meant  plainly 
the  representatives  of  the  people.  This  particular  bill  was  there- 
fore declared  to  be  enacted  by  "The  Governor  by  and  with  the 
consent  of  his  Majesty's  Council  and  this  General  Assembly." 
Thereafter  the  style  usually  employed  was,  "Be  it  enacted  by 
the  Governor,  Council  and  Assembly  (or  General  Assembly)  and 
by  the  authority  of  the  same."  ^ 

The  legislative  system  in  the  province,  as  thus  constituted, 
performed  the  usual  functions  of  representative  bodies  in  that 
branch  of  the  government,  affording  constitutional  means  for  the 
expression  of  public  opinion  on  emergent  occasions  as  well  as 
for  criticism  of  the  general  course  of  the  government.  The  most 
conspicuous  occasion  when  the  opinion  of  the  legislature  was 
expressed  at  a  crisis  of  public  excitement  occurred  in  connection 
with  events  just  prior  to  the  execution  of  Leisler.  Within  the 
first  ten  days  of  the  first  session  of  the  first  assembly  a  series 
of  resolves  was  passed,  condemning  proceedings  under  the  Leis- 
ler regime  and  pledging  loyalty  and  support  to  the  government 


'  Ass.  J.  I.  179-80,  185.     Col.  Laws  I.  575-6. 


IN    NEW    YORK^     169I-I719.  61 

as  established.  These  resolves  had  the  concurrence  of  the  gov- 
ernor and  council  and  were  published.  The  question  of  the  re- 
prieve of  Leisler  and  Milborn  v/as  referred  by  the  governor  to 
the  lov^er  house,  which  refrained  from  any  expression  of  opinion 
on  the  ground  tliat  the  matter  of  reprieve  was  a  prerogative  be- 
longing solely  to  the  governor.  Three  weeks  later,  however,  on 
being  consulted  on  the  same  subject  as  a  means  of  quieting  and 
securing  the  government,  the  house  appointed  a  committee  to 
confer  v/ith  the  council  on  the  question.  At  this  conference, 
presumably,  the  advice  of  the  council  in  favor  of  immediate 
execution  for  the  sake  of  satisfying  the  Indians,  asserting  the 
authority  of  the  government  and  preventirig  insurrections  in  the 
future  was  elaborated.  The  assembly,  at  any  rate,  gave  formal 
approval,  ''according  to  their  opinion  given,"  of  the  action  of 
the  governor  and  council.^  Criticism  of  the  conduct  of  the  gov- 
ernment was  also  expressed  on  various  occasions  in  the  form  of 
resolves,  usually  elaborated  under  the  direction  of  the  grievance 
committee. 

The  exercise  of  the  power  of  final  scrutiny  of  the  legislative 
output  of  the  general  assembly  was  formally  in  the  hands  of  the 
privy  council.  Practically,  the  council  depended  on  the  repre- 
sentations of  the  Board  of  Trade  and  Plantations  or  its  prede- 
cessors, as  the  basis  of  its  action.  The  length  of  time  required 
for  communication  between  the  home  government  and  the  prov- 
ince enhanced  the  practical  importance  of  legislation  which  had 
passed  through  all  but  this  final  stage.  The  instructions  to  Don- 
gan,  in  1683,  required  that  laws  assented  to  by  the  governor 
should  be  held  good  and  binding  till  the  duke's  disapproval 
should  be  signified,  and  that  all  laws  should  be  made  "indefinite 
and  without  limitation  of  time  except  the  same  be  for  a  temporary  , 
end  and  which  shall  expire  and  have  its  full  efifect  within  a 
certain  time."  The  Charter  of  Liberties  provided  that  laws 
should  remain  in  force  till  repealed  by  the  general  assembly  "by 
and  with  the  approbation  of  his  Royal  Highness."^  The  exact 
meaning  of  this  provision,  if  carried  out  into  detailed  application, 
is  not  clear.  As  the  Charter  of  Liberties  was  never  confirmed, 
the  matter  is  significant  only  as  revealing  provincial  ideals.  It 
may  be  that  it  was  desired  that  the  presumption  should  be  in 

"^        'Ass.  J.  I.  6-7,   13-14.     Doc.  Hist.  II.  374. 
^^Col.  Doc.  III.  332.     Col.  Laws  I.   113. 


62  PHASES    OF    ROYAL    GOVERNMENT 

favor  of  the  bill  which  had  passed  and  that  special  action  by  the 
enacting  body  itself,  directed,  it  is  true,  by  the  proprietor,  should 
be  necessary  to  change.  That  this  would  be  no  merely  formal 
advantage  is  shown  by  the  difficulty  that  governors  repeatedly 
experienced  in  persuading  assemblies  to  carry  out  precise  direc- 
tions of  the  crown  regarding  legislation.  The  instructions  to 
Sloughter  in  1691,  as  has  been  indicated,  omit  the  requirement 
that  laws  be  made  indefinite,  etc.  Whether  this  omission  was  de- 
liberate and  the  result  of  experience,  sources  which  are  at  pres- 
ent accessible  do  not  inform  us.  It  had  been  omitted  from  the 
instructions  of  1686,  which  abolished  the  assembly,  and  was  not 
re-inserted  till  the  instructions  to  Hunter  in  1709.  As  a  matter 
of  actual  practice  the  Board  of  Trade  and  the  privy  council  seem 
to  have  been  content  to  allow  the  presumption  to  be  in  favor 
of  the  enacted  law,  relying  on  the  governor  to  inform  the  Eng- 
■  lish  authorities  of  the  desirability  of  prompt  action  either  in  con- 
firmation or  disallowance.  Under  ordinary  circumstances,  action 
of  any  kind  by  the  home  authorities  on  provincial  legislation 
was  very  slow  in  coming  and  was  resorted  to  only  spasmodically. 
'-  The  government  of  William  and  Mary  apparently  took  no  action 
on  any  provincial  legislation  from  New  York  till  1697,  when 
out  of  sixty-three  acts  passed  since  1691,  eleven  were  confirmed 
and  one  repealed.  There  was  another  burst  of  activity  in  1700, 
and  another  more  notable  one  in  1708,  when  seventeen  acts  were 
confirmed,  three  of  which  had  passed  the  provincial  legislature 
prior  to  1700.  There  was  another  wholesale  confirmation  in 
1709,  after  which  action  one  way  or  the  other  seems  to  have 
depended  wholly  on  the  question  of  urgency,  as  represented  by 
the  governor  in  specific  cases. ^ 

It  would  seem  that  the  assembly  deliberately  traded  on  the 
government's  indisposition  to  take  action  relating  to  laws  of 
limited  duration  and  cast  as  many  as  possible  of  their  acts  in  a 
temporary  form  accordingly.  Of  sixty-three  acts,  passed  between 
1691  and  1697,  vv^e  have  record  of  action  by  the  imperial  author- 
ities on  twelve;  of  fifty-three  acts,  passed  between  1697  ^^'^^  ^^'^^ 
arrival  of  Cornbury,  fourteen  received  attention  and  three  of 
these  were  not  acted  on  till  1708;   of  seventy-two  acts,  passed  in 


^  Information  relating  to  confirmation  or  repeal  of  acts  is  taken  from 
Colonial  Laws,  which  follows  Col.  Docs,  or  ancient  editions  of  the  laws 
or  Fowler's  Bradford. 


IN    NEW    YORK_,     169I-I719.  63 

Cornbury's  administration  we  have  twenty-four  confirmations 
and  four  repeals.  Of  twenty-eight  acts  passed  in  the  adminis- 
tration of  Ingoldsby  between  the  death  of  Lovelace  and  the 
arrival  of  Hunter  we  know  of  only  one  action  —  a  repeal.  But 
this  was  the  period  of  the  first  Canada  expedition,  which  de- 
manded of  the  legislature  much  activity  of  a  nature  not  sub- 
ject to  cavil.  The  same  is  true  of  the  early  part  of  Hunter's 
administration,  within  whose  term  of  nearly  ten  years  a  total  of 
more  than  one  hundred  and  fifty  acts  was  passed,  followed  by 
decisive  imperial  action  on  only  six.  Throughout  the  whole 
period  acts  not  of  a  duration  manifestly  limited  by  their  wording 
and  at  the  same  time  not  acted  on  by  the  home  authorities,  are 
very  few  indeed.  And  the  number  of  acts  formally  disallowed 
during  the  whole  period  was,  according  to  present  sources  of  in- 
formation, hardly  more  than  a  dozen,  of  which  six  were  the 
product  of  a  legislature  about  whose  truly  representative  char- 
acter there  was  so  much  reasonable  doubt  as  to  justify  the  gov- 
ernor's recommendation  that  its  whole  output  be  annulled.^ 

The  crown  veto  was  exercised  in  anticipatory  fashion,  as  it 
were,  by  the  increasing  strictness  with  which  the  exercise  of  the 
legislative  power  was  circumscribed  in  the  successive  sets  of  in- 
structions to  the  governors.  In  addition  to  the  requirements  that 
(i)  laws  made  be  agreeable  (as  near  as  may  be)  to  the  laws 
of  England;  (2)  that  acts  levying  money  and  inflicting  fines 
should  reserve  the  same  to  public  uses  indicated  in  the  act;  (3) 
that  acts  granting  money  to  the  governor  should  follow  the  style 
of  acts  of  parliament  for  an  analogous  purpose  in  England ;  (4) 
that  no  act  lessening  or  impairing  the  revenue  should  be  passed 
without  leave  from  home,  all  of  which  are  found  in  the  instruc- 
tions to  Sloughter,  many  others  appeared  in  those  to  Hunter  in 
1709.  ''Riders"  and  ''jokers"  were  apparently  provided  against" 
by  the  requirement  that,  "whatever  may  be  requisite  upon  each 
different  matter  be  accordingly  provided  for  by  a  different  law, 
without  intermixing  in  one  and  the  same  act  such  things  as  have 
no  proper  relation  to  each  other,"  going  on  to  forbid  particularly 
the  insertion  in  an  act  of  any  clause  foreign  to  what  the  title 
should  import,  or  of  a  perpetual  clause  into  a  temporary  act,  and 
the  suspending,   confirming  or  repealing  of  any  act  by  general 


Col.  Doc.  IV.  999. 


64  PHASES    OF    ROYAL    GOVERNMENT 

words.  It  was  further  required  that  all  private  acts  should  con- 
tain a  clause  saving  the  rights  of  the  crown  and  of  all  bodies^ 
politic  or  corporate,  and  of  all  persons  except  such  as  are  men- 
tioned in  the  act.  "And  whereas  great  mischief  may  arise  by 
passing  bills  of  an  unusual  and  extraordinary  nature  and  import- 
ance in  the  plantations  which  Bills  remain  in  force  there  from  the 
time  of  enacting  until  our  Pleasure  be  signified  to  the  Contrary 
We  do  hereby  will  and  require  you  not  to  pass  or  give  your  con- 
sent hereafter  to  any  Bill  ...  of  unusual  and  extraordinary 
importance  wherein  our  prerogative  or  Property  of  our  subjects 
may  be  prejudiced  without  either  having  first  transmitted  unto  us 
the  Draught  of  such  Bill  .  .  .  and  our  having  signified 'our 
Royal  Pleasure  thereupon  or  that  you  take  care  that  in  the  pass- 
ing of  (any)  Act  .  .  .  that  there  be  a  clause  inserted  therein 
suspending  and  deferring  the  execution  thereof  until  our  Pleasure 
be  known  concerning  the  said  Act."  No  law  for  raising  any 
imposition  on  wines  or  strong  Hquors  should  be  made  to  continue 
for  less  than  one  whole  year.  The  governor  was  not  to  re-enact 
any  law  once  enacted,  except  on  very  urgent  occasion,  and  in  no 
case  more  than  once  without  express  consent  from  home.  It  is 
evident  that  these  instructions,  if  carried  out,  would  prevent  the 
appearance  before  the  privy  council  of  laws  bearing  certain  ob- 
jectionable characteristics.  Laws  passed  after  the  receipt  of  these 
instructions  still,  however,  display  many  of  the  features  prohib- 
ited. The  threatened  use  of  the  crown's  veto  as  a  weapon  where- 
v/ith  to  compel  the  assembly  to  pass  legislation  in  the  required 
form  is  another  reason  for  the  small  number  of  actual  instances 
of  the  exercise  itself.  This  is  illustrated  by  the  experience  in 
the  case  of  the  act  for  suppressing  and  punishing  the  conspiracy 
and  insurrection  of  negroes,  passed  in  171 2,  concerning  which 
Hunter  reported  that  it  had  been  found  in  practice  to  work 
several  abuses.  In  171 5  the  Board  of  Trade  gave  Hunter  permis- 
sion to  recommend  to  the  assembly  the  passing  of  a  new  act  for 
the  purpose,  not  liable  to  the  inconveniences  complained  of,  saying 
that  otherwise  they  would  be  obliged  to  lay  the  act  before  his 
Majesty  for  disallowance.  The  act  was  accordingly  revised  in 
1717^  The  elastic  possibilities  of  the  governor's  power  to  use 
his  influence,  in  one  way  for  an  immediate  and  temporary  end, 

'  Col.  Doc.  V.  181,  480,  503. 


IN    NEW    YORK^     169I-I719.  65 

and  in  another  for  distant  objects  is  illustrated  by  the  case  of 
the  act  for  the  better  settlement  and  assuring  of  lands,  passed 
in  1710.  On  this,  Hunter  observed  that  he  passed  it  reluctantly, 
because  "there  was  no  saving  the  Queen's  right  in  it,"  that  he 
was  induced  to  pass  it  by  the  fact  that  the  assembly  was  very 
fond  of  it  and  he  wished  to  leave  them  no  excuse  for  not  settling 
the  revenue ;  that  since  the  persons  who  hoped  to  profit  by  it 
were  to  remain  in  peaceable  possession  till  1713,  "Her  Majesty 
will  have  so  long  time  to  disallo'.v  it  without  receiving  any  pre- 
judice by  it^  if  any  encroachments  have  been  made  on  any  of 
her  lands."  In  1716  he  again  urged  that  the  act  be  disallowed, 
saying  that  that  would  pave  the  way  for  a  second  resumption  of 
lands,  which  otherwise  would  be  very  difficult;  also  that  the 
want  of  a  clause  saving  the  rights  of  the  crown  was  sufficient 
reason  for  disallowance,  though  he  could  give  others.  In  1718 
the  Attorney  General  gave  opinion  that,  though  he  had  objections 
to  it,  yet  he  thought  its  disallowance  would  tend  to  some  ill  con- 
sequences. The  Board  of  Trade  suggested  that  if  the  assembly 
would  "pass  a  new  act  for  repealing  this  whereby  the  persons 
who  purchased  under  the  security  of  the  act  of  17 10  may  be 
safe  and  the  new  law  not  liable  to  any  other  objections,  Hunter 
might  give  his  assent,  provided  there  was  a  clause  in  it  declaring 
that  it  should  not  be  in  force  till  His  Majesty's  pleasure  be 
known."  It  does  not  appear  that,  during  this  period  at  any 
rate,  either  the  assembly  or  the  crown  took  any  further  steps  in 
the  matter,  so  that  whatever  harm  the  Prerogative  received, 
though  it  bad  been  the  design  of  the  governor  to  purchase  a 
permanent  advantac^e  by  a  temporary  risk,  became  in  this  case 
a  permanent  loss  —  a  process  v»'hich  had  in  the  history  of  the 
province  more  than  one  illustrative  demonstration.^ 

In  the  comparatively  few  cases  of  an  actual  exercise  of 
direct  veto  by  the  crown  the  reasons  seem  to  have  been,  ( i )  con- 
travention of  the  instructions,  (2)  uncertain  and  dangerously 
loose  form  of  wording;  (3)  inconsistency  with  the  trade  system 
of  the  empire;  (4)  grounds  of  general  public  policy.  Of  the 
last  the  disallowance  of  the  assembly's  act,  which  repealed  the 
law  for  vacating  the  extravagant  grants  of  land  made  by  Fletcher, 
is  the  most  important  example.     It  is  curious  to  note  that  this 


'  Col.  Doc.  V.  181,  480,  503. 
5 


66  PHASES    OF    ROYAL    GOVERNMENT 

disallowance  of  the  assembly's  repealing  act  was  the  form  under 
which  the  merits  of  the  original  question  appeared  for  final  settle- 
ment by  the  Lords  of  Trade,  nine  years  after  the  passage  of  the 
vacating  act.^ 

We  have  already  seen,  in  the  case  of  the  act  for  a  present  to 
Bellomont  and  Nanfan,  how  the  slow,  lumbering  process  of  ex- 
amination of  provincial  legislation  by  the  crown  might  annoy  a 
governor  and  even  mar  the  effectiveness  of  his  administration, 
by  the  implication  thereby  thrown  upon  the  matter  of  his  stand- 
ing at  court.  An  even  more  serious  consequence  for  the  welfare 
of  the  province,  at  one  point,  at  any  rate,  in  this  period  is  de- 
scribed by  Cornbury  in  1704.  He  suggests  that  it  would  be 
proper  for  him  "to  have  an  account  what  acts  of  this  province 
have  been  confirmed  and  what  not  .  .  .  because  there  is  now 
no  footsteps  in  the  Secretary's  office  .  .  .  nor  in  the  Coun- 
cil books  which  acts  have  been  confirmed  or  repealed  or  neither 
till  the  list  your  lordships  were  pleased  to  send  me  and  very  often 
in  hearings  before  me  in  Council,  the  lawyers  in  their  quotation  of 
acts,  on  one  side  affirm  certain  acts  to  be  repealed  when  those  on 
the  other  side  affirm  the  same  acts  to  be  confirmed."  When, 
however,  an  act  deemed  by  the  governor  of  critical  importance, 
had  passed  the  provincial  legislature,  every  effort  was  made  to 
obtain  a  speedy  verdict  from  the  crown.  In  Cornbury's  time  an 
act  granting  him  a  present  was  confirmed  in  four  months.  In 
Hunter's  administration  the  act  settling  the  revenue  contest  was 
confirmed,  after  considerable  opposition,  which  involved  taking 
the  opinion  of  the  attorney  general,  in  three  years. - 

The  governor's  "negative  voice"  had  been  given  him  by  the 
crown  for  the  express  "end  that  nothing  may  be  passed  or  done 
by  our  said  Council  or  Assembly  to  the  prejudice  of  us,  our  heirs 
and  Successours."^  This  power  of  the  "negative  voice"  was  used 
under  quite  different  forms  in  the  first  two  administrations  from 
those  which  prevailed  later,  but  throughout  the  period  the  lack 
of  any  effective  distinction  between  the  executive  and  legislative 
aspects  of  the  council's  organization  reduced  the  occasion  for 
direct  use  of  the  governor's  veto.  Under  these  conditions  it  be- 
comes necessary  to  speak  of  the  governor's  use  of  the  veto,  and 

^Col.  Doc.  V.  65-67,  71,  82,  143.  157. 

'Col.   Doc.   IV.   1112,   V.  501.     Col.   Laws  I.  508. 

'  Col.  Doc.  V.  94. 


IN    NEW    YORK,     169I-I719.  67 

of  the  relations  between  the  governor  and  council  in  the  whole 
process  of  law-making,  in  connection  with  each  other.  In  the 
first  session  of  the  assembly  in  1691,  the  question  of  the  form 
of  signifying  the  assent  of  the  governor  and  council  to  bills  sent 
up  by  the  representatives  arose,  by  reason  of  the  assembly's 
discovery  that  in  the  case  of  certain  bills  returned  with  amend- 
ments, some  contained  an  assent  of  the  governor  and  council, 
and  others  only  of  the  council.  On  investigating  the  precedents 
of  *'the  former  General  Assembly,"  it  was  discovered  that  the 
earlier  custom  of  signifying  assent  of  the  governor  and  council 
was  for  the  governor  to  put  his  sign  manual  to  the  bills;  and 
direction  was  given  that  the  governor  be  desired  to  continue  this 
method,  "being  most  consonant  to  the  Customs  of  England  and 
their  Majesties'  other  plantations."^  This  would  seem  to  in- 
dicate that  it  was  the  assembly's  theory  that,  in  form  as  well  as 
in  fact,  the  governor  should  have  two  separate  opportunities  to 
take  part  in  the  same  act  of  legislation,  viz.,  the  giving  the 
assent  of  the  governor  and  council  to  a  bill,  indicated  by  the  affix- 
ing the  governor's  signature ;  and  the  enactment,  enrolling  and 
publication  of  the  bill  as  an  act.  This  certainly  was  the  pro- 
cedure in  some  cases.-  On  the  other  hand,  we  have  an  instance 
of  a  vote  of  the  council  in  favor  of  an  assembly  bill ;  the  record 
of  the  governor's  signing  it  on  another  day,  and,  on  the  last  day 
of  the  session  also  referring  to  it  as  one  of  the  acts  which  he 
has  assented  to  and  has  passed,  and  inviting  the  representatives 
to  remain  and  attend  him  at  the  publication  of  these  acts.^ 

The  confusion  in  Fletcher's  mind  on  this  point  and  the  actuaP 
relation  between  himself  and  the  council  are  well  illustrated  by 
the  following  incident.  The  assembly  had,  in  July,  1695,  sent 
up  a  bill  providing  for  a  present  to  Fletcher.  The  council  voted 
to  "lay  it  aside,"  and  no  further  action  was  taken.  When,  how- 
ever, at  the  end  of  the  session,  the  governor  announced  the  re- 
sults of  the  assembly's  labors,  he  referred  to  this  bill  in  these 
words, — "as  that  Bill  was  framed  he  doth  reject  it," — as  incon- 
sistent with  his  honor,  thus  giving  no  opportunity  for  the  council 
as  the  upper  house  to  bring  the  question  regularly  before  him 
for  decision  on  the  matter  of  assent  and  enactment;    on  which 


'Ass.  J.  I.  10. 

'  Ibid.  64.    J.  of  L.  C.  I. 

'  J.  of  L.  C.  I.  52,  55-6. 


68  PHASES    OF    ROYAL    GOVERNMENT 

question,  indeed,  he  might  require  their  advice  as  an  executive 
council  !^ 

By  Bellomont's  time  the  matter  was  straightened  out  so  that 
the  procedure  included  the  agreement  by  both  houses  to  the  bill 
by  separate  vote,  which,  in  the  case  of  the  council,  was  recorded 
as  "an  assent  of  this  House,"  and  not  of  "His  Excellency  and 
Council,"  as  formerly,  and  then  the  signing  of  the  bill  by  the 
governor,  in  the  presence  of  the  council,  followed  by  his  order 
""^  for  enrollment.  This  signing  was  described  as  "giving  the  as- 
sent," and  Vv^as  always  followed  by  enactment  and  order  for 
enrollment.  This  was  described  as  the  "usual  form  of  passing 
Bills  into  Acts  in  this  province"  in  1699.- 

It  would  appear,  then,  that  under  Fletcher  the  governor's 
"negative  voice"  was  used,  in  connection  with  his  dominating 
personal  influence  in  the  council  on  legislative  projects,  in  some- 
thing like  the  anticipatory  fashion  in  which  the  crown's  veto  was 
used  towards  provincial  legislation  in  general.  Instead  of  pre- 
serving the  appearance  of  leaving  the  two  houses  to  arrive  at 
some  practical  agreement  on  the  issue,  and  then  using  his  veto 
according  to  his  estimate  of  the  necessity  of  the  situation,  he 
made  a  practice  of  interfering  by  special  message  at  any  stage 
of  the  assembly's  procedure,  and  lecturing  them  on  their  duty 
and  on  their  interest  in  view  of  the  intention  of  the  governor 
and  council  to  use  their  power  of  assent  in  one  way  or  another. 
Much  dependence  was  apparently  placed  on  the  efifect,  as  a  last 
resort,  of  personal  interviews  between  the  assembly  en  masse, 
and  the  governor  and  council.  This  method  was  successful  upon 
one  occasion,  but  upon  being  repeated  at  the  next  session  of  the 
same  assembly,  it  failed  utterly.^  When,  under  Bellomont  and 
successors,  a  procedure  was  followed,  which  separated  the  assent 
of  the  council  as  the  upper  house  from  the  assent  of  the  governor 
as  a  third  house,  this  device  of  the  message  of  the  governor  to 
the  assembly  during  the  course  of  a  session  was,  in  the  main, 
used  only  for  emergent  occasions.  And  the  governor's  influence 
as  holding  the  power  of  a  third  house  was  made  effective  in 
shaping  legislation  indirectly,  through  the  medium  of  the  council 
as  the  upper  house  and  its  close  connection  in  this  and  in  its 


'  J.  of  L.  C.  I.  79-80. 
'Ibid.  137-40,  143,  171. 
'Ibid.  62-66,  71-77. 


IN    NEW    YORK,     169I-I719.  69 

executive  capacity  with  the  governor.  But  the  governor  still 
continued  —  and  did  so  throughout  the  period,  —  to  sit  with  the 
council  when  acting  as  the  upper  house,  and,  in  case  of  a  tie, 
to  give  the  casting  vote.^  The  withholding  of  assent,  the  actual 
form  of  the  veto,  was  still  sometimes  confounded  with  the  lack 
of  action  by  the  upper  house,  in  the  governor's  remarks  to  the 
assembly  at  the  close  of  a  session.-  As  experience  with  the  work 
of  legislation  developed,  the  instances  became  more  frequent  of 
the  use  of  the  veto,  by  the  governor  in  an  independent  manner, 
but  they  were  never  very  numerous.^ 

The  governor's  "negative  voice"  was  only  one,  and  that  the 
most  direct,  of  a  number  of  ways  of  influencing  legislation.  He 
had  unrestrained  powers  in  the  matter  of  summoning,  proroguing 
and  dissolving  assemblies.  He  recommended  legislation,  and. 
action  on  the  governor's  speech,  as  a  whole,  and  item  by  item, 
often  constituted  tlie  program  of  the  assembly's  activity.  We 
have  seen  wliat  v/as  his  actual  influence  and  power  in  the  com- 
position of  the  council.  He  had  numerous  indirect  means  of 
influence  over  the  membership  and  organization  of  the  lower 
house.  We  will  consider  these  later  in  connection  with  the  de- 
scription of  the  house  of  representatives  itself,  and  at  present 
iriquire  into  the  governor's  use  of  his  power  over  the  frequency 
and  duration  of  sessions  of  the  assembly. 

Provincial  ideals  in  the  matter  of  control  over  the  sessions 
of  the  assembly  were  unmistakably  indicated  in  the  Charter  of 
Liberties  in  1683,  and  in  the  act  of  1691,  "Declaring  what  are 
the  Rights,  and  Privileges  of  Subjects  within  the  Province." 
The  former  provided  for  a  session  of  the  assembly  once  in  three 
years,  "according  to  the  usage  Custome  and  practice  of  the 
Realme  of  England";  and  the  latter  for  annual  sessions;  and 
both,  for  control  by  the  representatives,*  over  times  of  meeting 
during  sessions  and  over  adjournment.  As  we  have  seen,  neither 
of  these  acts  was  allowed  permanently  to  have  the  force  of  law ; 
but,  in  practice,  throughout  the  whole  period,  there  was  but  one 
year  in  which  there  was  not  at  least  one  session  of  the  assembly, 
and  generally  there  were  two.     For  the  most  part  the  governors 


'  J.  of  L.  C.  I.  273. 
'Ibid.  155,  234. 
'  Col.  Doc.  V.  357. 
*  Col.  Laws  I.  113,  245. 


70  PHASES    OF    ROYAL    GOVERNMENT 

seem  to  have  exercised  their  prerogative  in  the  matter  of  fixing 
the  time  of  sessions  in  an  accommodating  spirit,  frequently  con- 
sulting with  the  house  through  the  speaker  as  to  what  would 
be  a  convenient  date  to  which  to  adjourn.  The  sessions  thus 
arrangied  were  usually  held  in  March  or  April,  and  in  September 
and  October,  of  each  year.  Conditions  of  travel  seem  to  have 
had  an  important  effect  on  the  dates  of  opening  the  spring,  and 
closing  the  fall  sessions,  and  "occasions  of  husbandry,"  on  the 
closing  of  the  spring,  and  opening  of  the  fall  sessions.  But  in 
time  of  war,  or  of  unusually  critical  political  interest  the  sessions 
might  prolong  themselves  into  the  middle  of  harvest,  or  almost 
to  Christmas.     The  usual  length  of  a  session  was  about  six  weeks. 

It  seems  to  have  depended  on  the  idiosyncrasies  of  the  several 
governors  whether  the  house  should  adjourn  itself  to  the  agreed 
date,  or  be  adjourned  by  the  governor.  Cornbury  always  ad- 
journed the  house  himself,  but  his  predecessors  and  successors 
seem  to  have  allowed  either  form  indifferently,  with  a  tendency, 
if  anything,  in  favor  of  allowing  the  house  to  conform  to  the 
program  agreed  upon. 

Custom  as  officially  interpreted  did  not  at  first  require  that  a 
newly  arrived  governor  should  dissolve  the  existing,  and  summon 
a  new,  assembly.  There  were  at  least  two  occasions,  however, 
when  an  opinion  to  the  contrary  was  in  evidence,  it  probably 
being  due  to  a  desire  on  the  part  of  the  popular  party  to  find  an 
excuse  for  a  new  election.  On  one  of  these  occasions  this  opin- 
ion was  explicitly  frowned  upon  by  the  governor.^  Neverthe- 
less, as  things  actually  happened,  it  did  come  about  that,  till 
-Burnet's  time,  a  new  governor  was  always  persuaded  to  call  a 
new  assembly  shortly  after  his  arrival.  The  death  of  the  sover- 
eign was  regarded  as  working  a  dissolution  as  of  course.^  The 
arrival  of  a  new  commission  and  set  of  instructions  for  the  gov- 
ernor from  the  newly  crowned  king  was,  in  1715,  made  the  excuse 
for  a  dissolution  by  Hunter,  though  such  a  proceeding  had  ap- 
parently not  been  thought  necessary  under  analogous  circum- 
stances in  Cornbury's  time.^  Smith  evidently  regards  this  pro- 
ceeding of  Hunter's  as  a  pretext  and  describes  him  in  this  action 
as   ''determined  to  subdue  those    (of  his  opponents)    whom  he 


'  Ass.  J.  I.  122. 
"Smith,  p.  224. 
''J.  of  L.  C.  I.  396. 


IN    NEW    YORK^     169I-I719.  7I 

could  not  allure,"  and  was  plainly  impressed  with  the  success 
of  the  device.^  The  governor  was  able  to  secure  an  opinion  from 
the  provincial  attorney  general  to  the  effect  that  "the  Assembly 
being  called  by  Virtue  of  the  Letters  patent  from  her  late  Majestic 
and  those  being  determined  by  those  from  his  Majestic"  was 
dissolved.^  This  precedent,  however,  was  studiously  ignored  by 
Burnet. 

The  change  of  assembly  obtained  by  Hunter  through  the 
device  just  referred  to,  and  one  case  in  Fletcher's  administration, 
are  the  only  instances  out  of  at  least  six  different  attempts  in 
that  direction  of  the  successful  use  of  the  power  of  dissolution 
for  the  purpose  of  obtaining  a  more  compliant  body.  It  was 
usually  resorted  to  when  either  the  governor,  council,  and  assem- 
bly, or  the  council  and  assembly,  had,  in  the  course  of  some  con- 
test, come  to  an  impasse.^  In  one  case  the  governor  found  it 
necessary  to  use  this  power  to  save  his  dignity.  In  the  course 
of  the  revenue  controversy,  1709-1715,  the  assembly  attempted 
to  disguise  its  backwardness  in  supporting  the  government,  by 
pretending  a  scruple  at  the  fact  that  the  proclamation  for  its 
prorogation  had  been  dated  at  Burlington,  in  New  Jersey. 
The  governor  decided  that  the  '^assembly  are  Resolved  not  to  act 
Notwithstanding  the  opinions  of  the  Lords  of  Trade,"  and  fol- 
lowed the  advice  of  the  council,  "to  send  for  the  house  and  dis- 
solve, which  they  would  otherwise  doe  themselves." 

There  was  one  instance  of  the  refusal  of  the  governor  to 
use  his  power  of  dissolution  over  such  an  extended  period  that 
the  province  generally  came  to  regard  it  as  a  grievance.  The 
assembly  already  referred  to  as  procured  by  Hunter  for  the  pur- 
pose of  serving  his  interest  was  kept  in  existence  from  5  June, 
1 716,  to  10  August,  1726.  The  continuance  of  this  assembly, 
described  by  Hunter,  as  "the  most  dutiful  to  their  Sovereign  and 
the  most  attentive  to  the  true  interests  of  the  Colony  that  the 
Province  could  ever  boast  of,"  was  deemed  by  him  so  essential 
to  the  preservation  of  the  "measures  that  he  had  with  much 
labor  settled  for  the  peace  of  that  country,"  that  he  made  the 
matter  the  feature  of  a  letter  of  advice,  which  was  approved  by 
the  council,  and  delivered  to  Schuyler,  who  was  president  of  the 


'Smith,  224. 

'J.  of  L.  C.  I.  396. 

'  Ibid.  311. 


72  PHASES    OF    ROYAL    GOVERNMENT 

council  at  Hunter's  departure.  Further,  on  his  arrival  at  Lon- 
don, he  succeeded  in  having  Schuyler  particularly  directed  hy 
the  Lords  of  Trade  "not  to  presume  to  dissolve  the  present 
Assembly  or  suffer  the  same  to  be  dissolved  for  want  of  due 
prorogations  till  his  Majesty's  pleasure  be  further  known."  The 
close  personal  relations  between  Hunter  and  Burnet  made  pos- 
sible the  continuance  of  all  the  fundamental  features  of  the 
former's  policy,  including  the  relations  with  the  assembly,  and, 
though  "the  continuance  of  an  Assembly  after  the  accession  of 
a  new  Governor  was  represented  as  an  anti-constitutional  pro- 
ject," it  was  not  until  ''frequent  deaths  of  members,"  aided  by 
the  "intrigues  of  his  adversaries"  and  the  clamors  of  the  people 
for  a  new  election  obliged  him  to  that  course,  that  Burnet  dis- 
solved the  house. ^  It  is  not  surprising  under  the  circumstances 
that  we  find  this  assembly  rebuking  suggestions  of  the  illegality 
of  their  continuance,  and  quoting  the  practice  of  Ireland  in  the 
matter,  and  that  we  hear  nothing  in  the  proceedings  of  the  body, 
of  triennial  or  septennial  acts.^  Previous  to  this  "Long  Assem- 
bly," provincial  experience  had  developed  no  necessity  for  any- 
thing of  the  sort.  During  the  period  from  1691  to  1716,  there 
were  no  more  than  three  examples  of  an  interval  of  more  than 
two  years  between  successive  elections  of  new  assemblies.  The 
average  interval  was  about  eighteen  months. 

There  is  but  one  instance  of  a  dissolution  and  the  ordering 
of  a  new  election  by  a  lieutenant  governor  or  commander-in- 
chief.  This  was  in  1701,  when  Nanfan,  as  lieutenant  governor 
was  induced,  probably  practically  compelled,  to  this  step.  The 
excesses  indulged  in  by  this  assembly,  and  the  discredit  put  upon 
its  work  by  the  crown,  deprived  this  precedent  of  any  effective- 
ness. And  the  spirit  of  the  direction  to  a  lieutenant  governor 
or  commander-in-chief  to  forbear  to  pass  any  act  but  such  as 
should  be  absolutely  necessary  certainly  forbade  the  use  of  such 
an  important  power  by  a  locum-tenens  in  any  but  the  most  un- 
doubtedly emergent  occasions. 

In  using  the  power  of  prorogation,  the  governors,  in  the 
early  part  of  the  period,  seem  to  have  made  little  distinction  be- 
tween it  and  adjournment.  But  from  the  beginning  of  the 
eighteenth  century  the  practice  seemed  to  be,  that  a  prorogation 


'  Col.  Doc.  V.  534-5,  765-9,  783.     Smith,  pp.  240,  245,  267. 
^Ass.  J.  I.  442-3,  451. 


IN    NEW    YORK,     169I-I719.  73 

put  an  end  to  the  life  of  bills,  and  an  adjournment  to  that  of 
committees.  There  was  at  least  one  occasion  when  the  gover- 
nor prorogued  the  assembly  for  the  conventional  reason  —  that 
"second  thoughts  and  better  Acquaintance  may  perhaps  create  a 
better  Disposition/'^ 

We  have  thus  far  been  describing  the  crown  and  the  gov- 
ernor in  their  relation  to  the  work  of  the  legislature,  taking 
the  fact  and  the  mode  of  existence  of  the  latter  for  granted.  It 
is  now  in  order  to  describe  the  process  of  constituting  the  legis- 
lature, its  membership,  the  organization  of  the  two  houses  re- 
spectively and  their  relation  to  each  other  in  the  actual  work  of 
legislation. 

The  constitution  of  the  upper  house  of  the  legislature  has 
already  been  described  in  speaking  of  the  executive  council.  Its 
membership  in  one  capacity  was  identical  with  that  in  the  other, 
and,  as  has  already  been  indicated,  the  connection  between  them 
was  confusingly  close. 

Taking  up  then,  the  constitution  of  the  lower  house,  we 
find  tl.at,  in  form,  the  governor's  discretion  in  summoning  rep- 
resentatives in  the  matter  of  the  number  of  delegates,  their 
apportionment  and  qualifications,  was  only  vaguely  restrained  by 
the  commission  and  instructions.  In  1691,  these  required  that 
the  assemblies  should  be  of  the  "Inhabitants  being  freeholders 
within  your  government,"  that  persons  elected  should  take  the 
modified  oaths  of  allegiance  and  supremacy  and  the  Test,  and 
that  the  summoning  should  be  "according  to  the  usage,"  at  first 
of  "our  other  Plantations  in  America,"  and  from  1692  on,  "of 
our  colony  of  New  York."  In  general,  in  the  evolution  of 
"usage"  in  this  matter,  as  in  so  many  other  directions,  the  action 
of  the  assembly  Vv^as  the  more  prominent  feature;  but  the  co- 
operation of  the  governor  and  council  was  by  no  means  lacking. 

In  the  matter  of  apportionment,  experience  prior  to  1691 
furnished  useful  precedents.  The  instructions  to  Dongan  for 
calling  the  first  assembly  directed  him  to  "issue  out  soe  many 
writs  or  summons  and  to  such  officers  in  every  part  not  ex- 
ceeding eighteene  soe  that  the  .  .  .  inhabitants  of  every 
part  of  the  said  government  may  have  convenient  notice  there- 
of  and   attend    at   such    ellection."^    In   accordance   with   these 


'  Ass.  J.  I.  10,  321,  352,  287. 
'Col.  Laws  I.  112,  121-2. 


74  PHASES    OF    ROYAL    GOVERNMENT 

instructions  writs  were  issued  to  the  sheriffs,  in  some  cases 
prescribing  a  method  of  choice  within  a  particular  jurisdiction. 
For  example,  the  sheriff  of  Long  Island  was  ordered  to  'Varne 
the  Freeholders  to  name  two  deputies  for  each  Rideing" ;  this 
as  a  general  direction,  supplemented  by  specific  commands  that 
Staten  Island  should  nominate  one  representative,  that  the  towns 
on  Long  Island  should  each  send  a  committee  of  four  to  the 
Session-house  of  each  riding  to  nominate  two  representatives  for 
the  riding,  and  that  the  inhabitants  of  Fisher's,  Silvester's  and 
Gardiner's  Island  vote  with  the  East  Riding.  By  thus  using 
the  existing  organization  of  the  localities  as  a  basis,  and  adapt- 
ing it  by  the  most  practically  convenient  methods,  the  sense  of 
the  directions  in  the  instructions  seems  to  have  been  carried  out. 
At  the  first  session  of  this  first  assembly  an  act  was  passed 
dividing  the  province  into  twelve  counties,  including  Martha's 
Vineyard  and  adjacent  islands,  and  the  Pemaquid  region,  each, 
as  counties.  The  Charter  of  Liberties  apportioned  the  repre- 
sentatives among  ten  counties,  on  the  basis  of  two  representa- 
tives to  each  county  named,  except  that  New  York  had  four, 
and  the  township  of  Schenectady,  within  Albany  County,  was 
given  a  representative  separate  from  the  county  delegation.  To 
the  general  description  of  apportionment  in  the  act  was  appended 
these  words ;  "and  as  many  more  as  his  Royal  Highness  shall 
think  fitt  to  Establish."^  This  division  of  the  territory  of  the 
province  into  counties  and  apportionment  of  the  representatives 
among  them  is  practically  identical  with  the  plan  of  the  assembly 
as  originally  called,  organized  on  a  systematic  basis  and  pro- 
viding for  the  expansion  of  the  representative  system  under  the 
auspices  of  the  proprietor.  In  summoning  the  second  assembly, 
under  Dongan,  we  have  record  of  the  issue  of  writs  only  to  New 
York,  Kings,  Queens,  Duke's,  Suffolk,  Albany  and  Ulster  Coun- 
ties ;  and,  in  the  case  of  the  assembly  summoned  by  Leisler,  of 
the  issue  of  writs  to  the  same  list  with  the  exception  of  Suffolk 
and  Duke's,  and  the  addition  of  Westchester.^  Nothing  in  the 
sources  which  are  at  present  accessible  throws  any  light  on  the 
omission,  in  1685,  to  send  writs  to  the  other  counties.  Those 
in  the  list  are  certainly  the  most  important  counties  in  point  of 
population   and   wealth ;    and   it   may  be  that   the   others   were 


'J.  of  L.  C.  I.  Introd.  p.  xi. 

=*  Col.  Doc.  III.  624.     J.  of  L.  C.  I.  Introd.  pp.  xiv-xxiv. 


IN    NEW    YORK^     169I-I719.  75 

linked  in  with  those  to  which  writs  were  sent,  as  was  the  case 
with  Orange  County,  prior  to  its  attaining  a  respectable  position 
in  numbers  and  property. 

The  commission  and  instructions  to  Sloughter  in  1691,  which 
outlined  the  organization  of  the  provincial  government  for  the 
next  sixty  years,  required  the  summoning  of  assemblies  accord- 
ing to  the  usage  of  the  plantations.  The  persons  elected  by  the 
major  part  of  the  ''freeholders  of  the  respective  Counties  and 
places"  were  also  required  to  take  the  oaths  and  the  Test  before 
being  qualified  to  sit.^  Accordingly,  within  a  few  days  of 
Sloughter's  arrival,  we  find  the  governor  and  council  appointing 
sheriffs  and  issuing  writs  of  election  to  New  York,  Kings, 
Queens,  Suffolk,  Westchester,  Richmond,  Albany,  and  Ulster 
and  rjutchess  Counties,  the  last  two  being  mentioned  together 
as  under  one  sheriff,  and,  presumably,  receiving  but  one  writ. 
The  first  assembly  of  William  and  Mary,  then,  as  at  first  con- 
stituted, consisted  of  two  representatives  from  each  of  the  above 
county  constituencies  except  New  York,  which  sent  four.  On 
the  first  day  of  the  session,  the  council  ordered  the  sheriff  of 
Albany  County  to  cause  an  election  to  be  held,  of  a  Burgess 
from  the  Manor  of  Renss.elaerwyck,  so  that  the  total  member- 
ship of  the  assembly  stood  at  nineteen. ^  The  act  passed  in  this 
first  session,  declaring  the  rights  of  subjects  in  New  York  —  for 
most  purposes  a  re-enactment  of  the  Charter  of  Liberties  —  pro- 
vided for  the  scheme  of  apportionment  that  prevailed  in  the  assem- 
bly which  enacted  it,  except  that  Duke's  County  appears  in  the 
list  as  entitled  to  two  representatives,  and  that  Dutchess  is  not 
mentioned  in  connection  with  Ulster.  As  in  the  Charter  of 
Liberties,  provision  was  made  for  expansion  of  the  representative 
system  by  the  phrase,  "and  as  many  more  as  their  Majesties, 
heirs  and  successours  may  think  fit  to  establish."^  It  is  to  be 
observed  that  both  by  the  governor  and  council  and  by  the  terms 
of  the  act  declaring  the  rights  of  subjects  in  New  York,  the 
limitation  of  the  number  of  delegates  to  eighteen,  as  prescribed 
in  the  instructions  to  Dongan,  was  disregarded.  But  it  is  to  be 
presumed  that  the  action  of  the  governor  and  council  in  sum- 
moning a  representative  from  Rensselaerwyck  was  taken  to  be 


^Col.  Doc.  III.  624. 

'J.  of  L.C.I.  1.     Ass.  J.  I. 

^Col.  Laws  L  245. 


76  i'xi-v:^^5    Ui-     kUiAL    GOVERNMENT 

the  act  of  the  crown,  till  distinctly  reversed  from  home  —  which 
was  never  done.     The  action  of  the  crown  in  transferring  Duke's 
County  to  Massachusetts  settled  the  question,  so  far  as  it  con- 
cerned that  region.     The  first  four  assemblies  mention  the  names 
of   two   representatives   as   coming  from    "Ulster   and   Dutchess 
Counties" ;  after  which,  Dutchess  does  not  appear  as  represented, 
even   jointly   with   Ulster,   till    171 3,    when   the   council   ordered 
that  it  have  one  representative,  and,  in   17 14,  that  it  have  two. 
There  appears  to  be  no  rearson  for  mention  of  Dutchess  County 
in   the  roll   of  members   in  the   first   four   assemblies,   and   it  is 
probable*  that  the  lists  of  the  counties   which  are  printed  with 
the  names  of  the  representatives,  at  the  beginning  of  each  assem- 
bly, are  not  official.     In  1701,  Dutchess  County  was  declared  by 
act  of  assembly  to  be  annexed  to  Ulster  County  for  purposes  of 
representation,    for    seven    years    after   publication    of    the    act.^ 
This  act  was  repealed  by  the  assembly  in  1702,  and  though  the 
repealing  act  was   itself  disallowed  by  the  crown,  this  was  not 
until   1708,   when   the   benefit   which   came  to   Dutchess   County 
under  the  terms  of  the  original  act  was  expiring.     The  same  as- 
sembly of  1 70 1,  at  a  later  session,  passed  an  act  augmenting  the 
number    of    representatives,    bringing    the    total    to    twenty-five, 
giving  New  York  six,  Albany  five,   and  all  other  counties  but 
Dutchess,  two  each.     This  involved  less  expansion  of  the  repre- 
sentative  system   than   Bellomont  had   proposed   to  the   council, 
viz.,   an   increase   from   nineteen   to  thirty,    in   order   "to   put   it 
further  from  the  power  of  any  Governor  to  make  a  party  for  the 
future  to  carry  on  any  private  end."     But  even  the  assembly's 
scheme  of  expansion  was  disallowed  within  a  year.^     The  right 
to  send  a  representative  was  usually  conferred  upon  a  localitj 
by  the  governor  and  council.     In   1698.  on  memorial  from  the 
inhabitants  of  Orange  County,  the  council  ordered  that  a  sheriff 
be    appointed    and    a    representative    chosen,    as    for    the    other 
counties.      This   proceeding,   without   direct   authorization   from 
home,  was  complained  of  by  Bellomont's  opponents,  as  a  stretch 
of  the  governor's  power,  and  an  evidence  of  his  design  to  pack 
the  assembly.  Orange  County  being  at  that  time  sparsely  popu- 
lated.^    In  the   same  year,  Albany   County   was   empowered  to 


Col.  Laws  I.  453. 

Ibid.  478-9.    E.  C.  M.  VIII.  39. 

Col.  Doc.  IV.  621.     E.  C.  M.  VIII.  74. 


IN    NEW    YORK,     169I-I719.  JJ 

send  three,  instead  of  two,  representatives,  and  the  Borough  of 
Westchester,  incorporated  in  1696,  was  empowered  to  choose  a 
representative,  thus  bringing  the  total  membership  of  the  assem- 
bly to  twenty-two.^  Here  the  number  remained  till  171 3,  when 
Dutchess  County  was  empowered  to  elect  a  representative ;  while, 
in.1714,  Dutchess  and  Orange  Counties  were  authorized  to  elect 
two  each,  and,  in  17 17,  a  member  was  admitted  from  Livingston 
Manor.^  This  brought  the  total  up  to  twenty-six,  where  it  re- 
mained for  nearly  twenty  years.  It  is  curious  to  note  that  this 
increase  in  membership  under  Hunter  was  apparently  made  for 
the  very  purpose  which  Bellomont's  plan  of  expansion  was  de- 
signed to  avoid,  viz.,  to  make  it  possible  for  the  governor  to 
found  a  party  in  the  assembly.  Hunter,  however,  used  this  "in- 
terest," when  acquired,  never  for  private  ends,  but  for  the  wel- 
fare of  the  province.  This  will  be  referred  to  in  connection 
with  the  revenue  controversy  in  a  subsequent  chapter.  Nothing 
could  better  illustrate  the  growth  of  the  power  of  the  assembly 
in  the  interval  between  the  administrations  of  Bellomont  and 
Hunter. 

There  was  a  peculiar  feature  in  connection  with  the  rep- 
resentation  of  manors,  which  may  be  mentioned  here.  In  1701 
Bellomont  reported  with  indignation  that,  among  other  bad  feat- 
ures of  Fletcher's  extravagant  grants  of  land,  the  privilege  of 
sending,  after  twenty  years,  a  representative  to  the  assembly, 
had  been  included  in  three  of  the  grants,  and  that  they  had  been 
erected  into  manors.  Cortlandt's  was  one  of  these,  and,  presum- 
ably also,  Livingston's,  for  promptly  after  the  expiration  of  the 
twenty  years,  i.  e.,  in  1717,  we  find  a  representative  from  Liv- 
ingston Manor  admitted  to  the  assembly  without  action  by  the 
council  in  either  its  legislative,  or  its  executive  capacity.  Im- 
mediately thereafter  a  bill  was  ordered,  providing  that  every 
manor  in  the  colony,  together  with  the  village  of  Islip,  be  allowed 
a  member;  that  Suffolk  and  Queens  Counties  be  divided  into 
three  counties  and  represented  accordingly,  and  that  no  other 
member  be  hereafter  admitted  without  the  consent  of  the  gov- 
ernor, council  and  assembly.  Later  in  the  session,  a  bill  provid- 
ing for  the  union  of  Kings  and  Queens  Counties,  and  the  creation 
of  a  new  county,  to  be  called  King  George  County,  and  its  rep- 


'  E.  C.  M.  VII.  179,  VIII.  76,  IX.  69. 

'E.   C  M.  XI.  167.    J.  of  C.  L  I.  381.     Ass.  J.  I.  395. 


7^  PHASES    OF    ROYAL    GOVERNMENT 

resentatation  by  six  members,  was  introduced;  but  even  under 
the  circumstances  of  a  close  understanding  between  the  governor 
and  assembly  at  this  time,  171 7,  it  did  not  escape  rejection  on 
the  second  reading/ 

With  respect  to  the  general  characteristics  of  the  apportion- 
ment, it  is  to  be  observed  that  the  influence  of  ideas  derived  from 
the  English  House  of  Commons  was  strong.  The  house  was 
practically  composed  of  county  and  borough  members,  the  man- 
ors which  sent  representatives  being,  so  far  as  crown  influence 
was  concerned,  rural  parliamentary  boroughs.  The  members 
were  ''not  the  peculiar  or  separate  agents"  of  the  localities,  "but 
their  quota  in  the  provincial  representation."^  There  was  no 
attempt  to  arrange  the  representation  of  the  counties  according 
to  population.  Richmond,  Westchester  and  Orange  Counties 
were,  throughout  the  period,  very  much  over-represented  as  com- 
pared with  the  Long  Island  population,  Richmond  and  West- 
chester never  having  more  than  one-third  to  one-half  of  the 
population  of  either  Queens  or  Suffolk,  yet  sending  the  same 
number  of  representatives.  Of  the  Long  Island  counties  them- 
selves. Kings  seldom  numbered  more  than  one-half  the  popula- 
tion of  Quee/is  or  Suffolk,  but  it  had  an  equal  number  of  repre- 
sentatives. For  at  least  one-half  of  the  period,  Albany  County 
had  three  representatives  to  the  two  from  Queens  or  Suffolk, 
while  her  population  would  not  quite  equal  one-half  of  either 
of  them.^  That  the  Long  Island  people  felt  this  situation  to  be 
a  grievance  is  evidenced  by  the  attempt  in  171 7,  which  has  just 
been  referred  to. 

In  examining  the  process  by  which  a  general  assembly  was 
brought  into  existence,  v/e  inquire  next  into  the  election  of  rep- 
resentatives. Taking  up,  first,  the  right  of  suffrage,  we  find 
the  commission  and  instructions  vague  in  their  expressions  on 
this  point.  The  assemblies  were  to  be  "of  the  Inhabitants  being 
freeholders  within  your  Government."  The  Charter  of  Liber- 
ties declared  that  "Every  freeholder  within  this  province  and 
freeman  in  any  Corporation  Shall  have  free  Choise  and  Vote 
in  the  Electing  the  Representatives  without  any  manner  of  con- 
straint or  Imposicon     .     .     .     and  by  freeholder  is  understood 


^\ss.  J.  I.  395,  409,  428.     Col.  Doc.  IV.  823. 
"  Douglass,  Summary,  II.  p.  264. 
'  Doc^  Hist.  I.  687-699. 


IN    NEW    YORK,     169I-I719.  79 

every  one  who  is  Soe  understood  according  to  the  Lawes  of 
England."  The  act  of  1691,  declaring  the  rights  of  subjects 
in  New  York,  contained  the  same  provisions  except  that  "by 
freeholder  is  to  be  understood  every  one  who  shall  have  fourty 
shillings  P  Annum  in  freehold."^ 

By  1699,  an  experience  of  seven  elections,  at  least  one-half 
of  which  had  been  "carried  with  great  heat,"  and  all  but  the 
last  two  of  which  had  been  held  under  the  auspices  of  returning 
officers  appointed  by  one  administration,  led  to  an  attempt  by  the 
assembly  to  remedy  certain  abuses  in  the  conduct  of  elections.^ 
This  assembly  itself  was  a  partisan  body;  and  impartial  wisdom 
in  selection  of  points  for,  and  methods  of,  remedy,  is  not  to  be 
expected  from  it.  But  its  features  show  at  least  some  of  the 
opportunities  for  undue  influence  in  elections.  The  act,  which 
was  based  on  the  English  statutes  (8  Henry  VI.  c.  7,  and  8  Will. 
III.),  recited  "great  outrage,  tumult  and  Deceit"  in  the  manage- 
ment of  late  elections,  for  remedy  whereof  provision  was  made 
that  the  suffrage  should  be  the  right  of  persons  over  twenty-one 
years  of  age,  resident  within  a  city,  county  or  manor,  having 
land  or  tenements  improved  to  the  value  of  £40  in  freehold,  free 
from  all  incumbrances,  and  possessed  for  three  months  before 
the  test  of  the  writ,  and  that  the  sheriff  should  have  power  to 
examine  every  "chooser"  upon  oath  as  to  his  estate.  Freemen 
in  New  York  and  Albany  were  to  have  liberty  to  vote  in  their 
respective  corporations,  provided  that  they  had  been  freemen 
and  residents  for  three  months  before  the  issue  of  the  last  writ 
of  election,  any  usage  to  the  contrary  notwithstanding.  The  act 
further  provided  that  on  the  summoning  of  a  new  assembly, 
forty  days  should  elapse  between  the  test  and  the  return  of  the 
writ ;  that  the  secretary  of  the  province  should  issue  the  writs, 
sealed,  to  the  sheriffs,  who  on  receipt  of  the  same  were  to  endorse 
the  date  on  the  back  of  the  writ,  and,  within  six  days  of  that 
date,  give  public  notice  of  the  time  and  place  of  the  election, 
giving  at  least  six  days'  notice  to  the  constable  of  each  town. 
No  sheriff  or  undersheriff  was  to  receive  a  gratuity  for  any  act 
with  reference  to  the  writ  or  notice.  The  sheriff  was  required 
to  hold  his  court  for  election  at  the  most  usual  and  public  place 
for  that  purpose;    and  in   case  the   election  be  not  determined 

'Col.  Doc.   III.  686.     Col.   Laws  I.   112,  245. 
"^     '  Col.  Doc.  IV.  322-3. 


8o  PHASES    OF    ROYAL    GOVERNMENT 

''upon  the  view"  with  the  consent  of  the  electors  present,  but 
that  a  poll  be  required,  the  sheriff,  or  deputy  thereto  appointed 
by  the  sheriff,  was  to  take  the  poll  in  some  open  or  public  place. 
This  was  to  be  done  in  the  following  manner:  the  sheriff  was 
to  appoint  clerks  to  take  the  poll,  who  should  be  sworn  "truly 
and  Indifferently  to  take  ...  the  poll  and  to  sett  Down 
the  name  of  each  Elector  and  the  place  of  his  freehold  and  for 
whom  he  shall  poll  And  to  poll  no  Elector  who  is  not  sworn  if 
so  required  by  the  Candidates  or  any  of  them."  Further,  the 
sheriff  was  to  appoint  "for  each  Candidate  such  one  person  . 
..  .  nominated  to  him  by  such  candidate  ...  to  be  in- 
spector of  the  poll,"  and  poll  clerks.  The  oath,  which  might  be 
required  of  each  elector  before  giving  his  poll,  covered  the  fol- 
lowing points ;  the  location  and  value  of  the  freehold  by  which 
he  claimed  the  right  to  elect,  that  he  had  not  before  been  polled 
at  that  election,  and  that  he  had  not  procured  the  freehold  in 
order  to  gain  a  vote  in  the  election.  The  sheriff  was  forbidden 
to  adjourn  the  poll  to  any  other  place  in  the  city  or  county  with- 
out the  consent  of  the  candidates,  or  by  unnecessary  adjourn- 
ment to  protract  or  delay  the  election.  The  taking  of  the  poll 
was  to  proceed  from  day  to  day,  without  adjournment  without 
consent  of  the  candidates,  till  all  the  electors  present  should  be 
polled.  Copies  of  the  poll  were  to  be  furnished  to  those  desir- 
ing them  at  a  charge  only  sufficient  to  cover  the  cost  of  writing. 
Return  of  the  writ  was  to  be  in  the  form  of  an  indenture  be- 
tween the  sheriff  and  the  choosers.  For  every  wilful  violation 
of  this  act,  the  sheriff  was  to  forfeit  to  every  person  aggrieved 
the  sum  of  £30.^ 

Two  years  later,  an  assembly  under  the  same  party  influence, 
passed  an  act  for  the  regulation  of  elections,  which  recited  a 
continuation  of  many  and  great  abuses.  It  provided  that  no 
papist,  popish  recusant  or  person  refusing  to  take  the  oaths  of 
allegiance  and  supremacy,  as  modified  by  parliament,  or  the  Test 
and  the  Association,  on  the  tender  of  the  sheriff  or  either  of  the 
candidates,  should  be  allowed  to  vote  for  representatives  or  any 
other  officer;  that  any  person,  otherwise  qualified  as  required, 
having  freehold  in  possession  during  his  life  or  that  of  his  wife, 
of  the  required  value,  should  be  regarded  as  qualified  to  vote ;  and 
that  a  mortgage  on  a  man's  freehold,  provided  the  freeholder 

'Col.   Laws   I.   405-408.     Wilson,  Memorial   Hist.   II.  577. 


or  T, 


^^^^C.,,, 


^^lUA-,-,, 


IN    NEW    YORK^     169I-I719.  81 

were  in  possession  and  receiving  the  income,  should  not  debar  the 
freeholder  from  voting.^  Both  of  these  acts  were  repealed  by  the 
assembly  in  1702,  but  the  former  had  already  been  confirmed  by 
the  king  and  the  assembly's  repealing  act  was  itself  disallowed 
by  the  queen,  the  latter  of  the  two  acts  being  expressly  confirmed 
in  1708-9.  So  that,  though  after  long  delay,  both  of  the  acts 
may  be  regarded  as  contributing  to  the  election  law  of  the  prov- 
ince during  the  period.  No  other  laws  on  the  subject  were 
passed  prior  to  1719.  Tlie  numerous  and  detailed  directions  and 
prohibitions  indicate  with  sufficient  fullness  what  were  the  oppor- 
tunities for  fraud  in  the  conduct  of  elections.  The  estimate  com- 
monly prevailing  concerning  the  relation  of  the  governor  and 
council  to  the  election  of  representatives  is  well  represented  by 
Douglass :  "As  the  king  and  his  ministry  in  Great  Britain, 
though  they  do  not  chuse  the  parliament  yet  have  a  very  great 
influence  in  the  choice ;  so  it  is  with  respect  to  the  governors 
and  assemblymen  in  our  colonies.^  Plans  to  use  the  official 
influence  of  the  governor  and  council  in  elections  became  matter 
of  record  more  than  once.  For  example,  in  1695,  "the  Governor, 
Fletcher,  ''did  recommend  to  the  Council  to  consider  of  honest 
men  for  the  next  Assembly  advising  them  to  use  their  endeav- 
ours that  way."  And,  in  1692,  the  same  governor  asked  the 
advice  of  the  council  "if  it  might  not  be  Conducive  to  the  peace 
of  the  Government  for  him  to  be  personally  present  in  the  field" ; 
whereupon  the  council  unanimously  agreed  that  "it  is  very  nec- 
essary and  humbly  desire  it."  There  was  loud  complaint  against 
Fletcher  on  account  of  this  "presence  in  the  field,"  his  accusers 
relating  the  circumstances  of  his  packing  the  poll  with  soldiers- 
from  the  fort,  and  seamen  from  the  station  ship,  these  men  being 
endowed  with  the  freedom  of  the  Corporation  of  the  City  of 
New  York  for  the  purpose ;  also  of  false  arrests  at  the  polling 
place,  of  threats  to  imprison  opponents  of  the  government's  can- 
didates and  of  undue  returns  from  elections  in  the  rural  counties.^ 
The  election  act  of  1699  by  no  means  put  an  end  to  influence 
over  elections  exerted  from  above;    but  it  seems  to  have  been 


'Col.  Laws  I.  453,  523. 
'  Douglass  :     Summary  II.  p.  264. 

'  E.  C.  M.  VI.  137,  VII.  133.     Col.  Doc.  IV.  127,  129,  143,  218,  218, 
223.     Smith,  155. 

6 


82  PHASES    OF    ROYAL    GOVERNMENT 

exercised  thereafter  with  less  of  gross  and  open  violence,  and 
in  at  least  a  superficially  legal  manner.  Bellomont  made  very 
numerous  changes  in  the  appointments  of  sheriffs,  and  his 
enemies  reported  that  the  "Sheriffs  performed  their  business 
they  were  appointed  for  by  admitting  some  for  freeholders  who 
were  not  so,  and  rejecting  others  who  really  were  so,  as  they 
voted  for  or  against  their  party  and  by  nominating  and  appoint- 
ing inspectors  of  the  poll  who  upon  any  complaint  of  unfair 
dealing  gave  this  general  answer:  *If  you  are  aggrieved  com- 
plain to  Mylord  Bellomont'."  Complaint  was  also  made  that 
the  sheriffs  appointed  the  same  day  for  the  election  in  all  places 
except  the  two  most  remote  counties,  "whereby  the  best  free- 
holders who  had  estates  in  several  Counties  were  deprived  of 
giving  their  votes  at  several  elections."  Both  of  these  elections 
Bellomont  himself  describes  as  "very  fairly  carried,"  and  refers 
to  the  trick  of  simultaneous  elections  in  all  the  counties  as  "a 
thing  purely  in  the  Sheriffs'  power  to  do  and  cannot  be  reckoned 
unfair."^  Hunter's  influence  seems  to  have  been  exerted  not 
only  in  manipulation  of  the  polls  but  also  in  dealing  with  the 
assemblymen  after  election.  But  nothing  like  the  gross  and 
violent  interference  with  the  freedom  of  elections  carried  on  by 
Fletcher  appears  at  this  time.^ 

There  seems  to  have  been  great  interest  and  much  violent 
partisanship  displayed  at  the  elections.  Smith's  frequent  char- 
acterization of  elections  as  "carried  with  great  heat,"  and  Bello- 
mont's  amusement  at  certain  Long  Island  politicians,  who  for 
reasons  of  political  convenience  had  assumed  the  mark  of  Quaker- 
ism but  in  the  excitement  of  the  occasion  had  dropped  their  dis- 
guise and  had  become  involved  in  bloody  frays,  are  suggestive 
indications.'^  The  contests  were  closer  and  hotter  in  the  early 
part  of  the  period  than  they  were  at  a  later  time.  At  first  a 
change  in  membership  amounting  to  one-third  of  the  whole 
number  of  assemblyrhen  was  not  unusual ;  in  one  case  —  the 
revolution  after  Bellomont's  arrival  —  the  change  amounted  to 
nearly  one-half.  Whereas,  in  the  latter  part  of  the  period,  a 
change  of  one-fourth  or  one-fifth  of  the  total  was  remarkable, 


'  Col.  Doc.  IV.  507,  621,  821. 

'Ibid.    419,    429,    515,    534,    537,    769-70.     Smith,    pp.    107,    224,    240, 
241,  245. 

'Col.  Doc.  IV.  507,  509.     Smith,  pp.   156,  158,  162,  173,  223. 


IN    NEW    YORK,     169I-I719.  83 

and  the  return  of  all  but  two  or  three  of  the  members  of  the 
former  assembly  happened  more  than  once.  There  were  a  num- 
ber of  instances  of  long,  continuous  periods  of  service  in  the 
assembly,  extending  over  fifteen  or  sixteen  years.  One  Colonel 
Jackson,  of  Queens  County,  was  a  member  of  every  assembly  but 
one,  from  1692  to  1715. 

Control  of  membership  in  the  assembly  was  shared  between 
the  governor  and  the  assembly  itself.  In  the  hands  of  the  former, 
according  to  the  commission  and  instructions,  lay  the  power  to 
administer  the  oaths,  without  which  the  elected  members  could 
not  sit  in  the  assembly;  while  the  latter,  by  legislative  action 
determined  the  qualifications  required  of  persons  to  be  elected, 
scrutinized  cases  of  contested  election  and  expelled  members 
when  it  saw  fit.  The  requirement  of  the  oaths  appointed  by 
parliament  to  be  taken  instead  of  the  oaths  of  allegiance  and 
supremacy,  and  of  the  taking  of  the  Test,  by  persons  elected  as 
representatives,  before  being  allowed  to  sit  and  act  in  the  assem- 
bly, were  precise  and  unmistakable.^  The  matter  came  up  at  the 
first  session  of  the  first  assembly  in  1691,  vv'hen  the  representa- 
tives from  Queens  County,  being  Quakers,  refused  the  oaths, 
though  indicating  their  willingness  to  sign  the  Test,  and  to 
engage  to  perform  the  tenor  of  the  oaths  under  the  penalty  of 
perjury.  On  consultation  of  the  commission  and  instructions, 
this  was  deemed  insufficient,  and  they  were  therefore  dismissed 
by  the  house,  and  nev/  writs  were  ordered  for  election  of  mem- 
bers to  take  their  places.^  There  is  no  instance  of  the  governor's 
ithholding  the  oath  from  any  person  v/ho  appeared  to  have 
been  returned  by  the  sheriff.  All  examination  of  anything  but 
the  face  of  the  returns  was  made  by  the  assembly  itself.  In 
swearing  in  the  members,  the  usual  procedure  was  for  commis- 
sioners, appointed  for  the  purpose  by  the  governor,  to  meet  the 
members  at  the  usual  place  of  assembly  and  tender  them  the 
oaths,  after  which  the  ceremonies  of  organization  went  on.  When 
a  member  arrived  late,  it  was  a  frequent  practice  for  two  mem- 
bers to  accompany  him  to  the  governor,  and  on  their  return  and 
report  to  the  assembly  that  they  had  seen  him  swear  and  sign 
the  Test,  the  member  was  admitted  and  took  his  seat.     The  com- 


Col.  Doc.   III.  686. 
Ass.  J.  I.  2,  3-5. 


84  PHASES    OF    ROYAL    GOVERNMENT 

mission  and  instructions  gave  explicit  authority  over  the  member- 
ship of  the  assembly  neither  to  the  house  itself  nor  to  the  gov- 
ernor, except  what  was  involved  in  offering  them  the  oaths. 
Nevertheless  the  assembly  exercised  the  authority  fully  and  with- 
out dispute.  The  provincial  ideal  in  this,  as  in  so  many  other 
matters,  was  expressed  in  the  Charter  of  Liberties,  and  in  the  act 
declaring  the  rights  of  subjects  in  New  York,  in  both  of  which 
it  was  provided  that  the  assembly  was  to  be  ''judge  of  the  quali- 
fications of  the  members,  as  well  as  of  undue  elections  and  to 
have  power  to  purge  the  house  as  they  see  occasion."^ 

The  practice  of  the  province  throughout  the  period  was 
based  upon  these  provisions,  in  spite  of  the  fact  that  the  acts 
containing  them  never  received  confirmation.  By  the  act  of  i6 
May,  1696,  the  assembly  described  the  qualifications  of  members 
of  the  house  so  as  to  require  the  age  of  twenty-one  years,  resi- 
dence in  the  district  for  wliich  the  person  was  chosen,  and  pos- 
session of  freehold,  free  from  incumbrance,  improved  to  the 
value  of  £40.  But  the  assembly's  greatest  activity  in  control  of 
its  membership  appears  in  the  direct  examination  of  the  circum- 
stances of  the  election,  and  of  the  qualifications  of  its  members, 
as  the  cases  were  brough.t  before  it  by  the  petitions  of  those 
X  aggrieved.  The  heat  of  factious  strife  within  the  province  for 
the  first  twelve  years  of  this  period  gave  the  assembly  frequent 
opportunity  for  the  use  of  its  powers ;  and,  throughout  the  period, 
it  had  little  scruple  in  purging  its  membership  for  reasons  based 
on  its  partisan  notions  of  dignity  and  propriety.  Most  of  such 
expulsions  were  made,  ostensibly,  because  of  some  contempt  of 
the  privilege  of  the  assembly  which  had  been  committed  by  the 
'  offending  member.  In  general,  this  whole  matter  of  control  over 
its  own  membership  was  treated  as  a  privilege  belonging  to  itself, 
though  not  in  the  list  of  those  mentioned  by  the  speaker  at  the 
organization  of  each  new  assembly.  In  1710,  Lewis  Morris 
gave  utterance  to  some  ''warm  expressions"  in  debate,  on  con- 
sideration of  which  next  day,  Morris  having  been  ordered  to 
withdraw,  the  assembly  resolved  that  he  "has  falsely  and  scand- 
alously vilified  the  Integrity  and  Honesty  of  this  house,"  and  he 
was   forthwith   expelled.^     In    171 5,    Samuel   Mulford   was   ex- 

'Col.  Laws   I.   112,  246. 
'Ass.   J.   I.   283. 


IN    NEW    YORK,     169I-I719.  85 

pelled,  "for  printing  a  Speech  formerly  made  to  the  General 
Assembly  without  Leave  of  the  House  in  which  are  many  false 
and  scandalous  Reflections  upon  the  Governor  of  this  Province."^ 
These  are  cases  in  which  the  personal  characteristics  of  the  in- 
dividuals concerned  have  great  importance.  The  assembly,  in 
1701,  expelled  one  Matthew  Howell,  for  writing  a  paper  and 
delivering  it  in  to  the  house,  expressing  the  views  of  five  mem- 
bers on  the  pending  dispute  as  to  the  powers  of  a  president  of 
the  council.  This  paper  was  characterized  by  the  committee 
charged  with  its  examination  as  "tending  to  the  subversion  of 
government."-  By  the  notorious  assembly  of  1701  three  mem- 
bers v/ere  expelled  for  challenging  the  authority  of  the  speaker 
and  of  the  house  by  refusing  to  sit  and  act  with  them  till  the 
question  of  the  speaker's  citizenship  had  been  resolved,  thus,  as 
the  assembly  expressed  it,  presuming  "to  take  upon  them  the 
Judgment  of  the  Qualifications  of  members  and  to  take  notice 
of  the  Proceedings  of  the  House  before  they  had  been  in  the 
House  to  observe  any  Transactions  there," — "a  manifest  breach 
of  its  Privileges  and  of  dangerous  Example."^  On  abstract  prin- 
ciples the  assembly  was  probably  in  the  right,  but  the  grossly 
partisan  proceedings  of  this  assembly  in  other  ways  gave  it,  and 
all  precedents  connected  with  it,  a  bad  name.  For  example,  it 
was  the  custom,  in  cases  of  contested  election,  where  the  person 
returned  was  decided  by  the  house  itself  to  fail  of  the  required 
qualifications,  for  the  house  to  dismiss  the  person  and  order  a 
new  election.  Nevertheless  we  find  this  assembly,  in  one  of  two 
similar  cases,  ordering  a  new  election,  and  in  the  other,  examin- 
ing the  sheriff's  poll  and  ordering  the  next  on  the  list  to  take 
the  place  of  the  dismissed  person !  And,  in  another  case,  on  com- 
plaint of  an  undue  election,  the  committee  found  that  the  person 
returned  was  not  duly  elected,  but  that  the  petitioner  duly  was, 
and  the  assembly  ordered  the  clerk  of  the  crown  to  alter  the 
indenture  of  the  county  accordingly !  Election  cases  were  heard 
and  determined,  at  first,  by  the  whole  house,  with  the  occasional 
assistance  of  special  and  temporary  committees.  In  1699  we 
first  hear  of  a  standing  "committee  on  undue  elections,"  and  by 


'  Ass.  J.  I.  372. 
Mbid.  110. 
'Ibid.  130. 


86  PHASES    OF    ROYAL    GOVERNMENT 

1709,  we  find  the  assembly  endowing  this  committee  with  power 
to  send  for  persons  and  papers,  etc/  The  questions  ordinarily 
brought  before  the  house  were  such  as  the  validity  of  a  given 
return,  the  fact  of  the  qualification  of  a  certain  individual,  and 
the  like. 

As  has  been  indicated,  the  assembly  usually  proceeded  upon 
its  organization  immediately  on  assembling,  and  without  waiting 
for  the  formal  decision  as  to  disputed  cases  of  membership.  This 
organization  was  attended  with  considerable  ceremony,  in  which 
the  influence  of  House  of  Commons  usage  is  plainly  apparent. 
A  typical  procedure  —  that  of  1693  —  is  as  follows :  the  gov- 
ernor sent  for  the  members  to  come  to  him  at  the  fort  (the 
assembly's  place  of  sitting  was  at  first  in  a  tavern,  after  1704, 
at  the  City  Hall).  He  then  desired  them,  if  they  were  in  suffi- 
cient number  to  form  a  house,  to  return  to  their  house  and  choose 
a  speaker,  to  be  presented  to  the  governor  at  their  next  meeting. 
The  house  returned,  and  "after  some  debates,"  and  "many  urgent 
Arguments  to  be  excused,"  chose  James  Graham  as  Speaker; 
"the  House  being  unanimous  all  rose  up  and  conducted  him  to 
the  Chair."  The  house  then  requested  that,  on  his  being  ap- 
proved, he  would  demand  confirmation  of  their  "Rights,  Priv- 
ileges and  Customs."  The  house  then  proceeded  to  the  governor 
and  presented  the  speaker,  and  "desired  his  Excellency's  appro- 
bation," which  was  accordingly  granted  —  it  was  never  withheld. 
It  was  apparently  good  form  for  the  speaker,  on  his  presentation, 
to  "make  a  modest  apology."  On  his  presentation,  likewise,  the 
speaker  made  his  demand  for  the  confirmation  of  the  privileges 
of  the  house,  which  was  always  granted  as  of  course,  together 
with  the  request  that  they  be  entered  on  the  council  book.  The 
governor  then  delivered  his  speech,  upon  which  the  "representa- 
tives njade  a  bow  and  withdrew."  At  first  the  speaker  used  to 
repeat  to  the  house  the  heads  of  the  governor's  speech,  after 
their  return  from  this  interview,  but  finally  the  usage  crystallized 
into  the  form  of  reading  a  copy  of  it.^ 

The  first  assembly  ordered  that,  in  all  debates,  determina- 
tion should  be  reached  by  a  majority  of  votes  of  the  members 
present,  and  that  when  a  majority  of  the  representatives  were 
present  it  should  be  esteemed  a  house.     No  formal  enactment 

'  Ass.  J.  I.  116-118,  36,  87,  95-6,  241,  92-97,  49-50. 

''Ass.  J.  I.  1-2,  32,  36,  58.    J.  of  L.  C.  I.  47,  49.     Col.  Doc.  IV.  1115. 


IN    NEW    YORK,     169I-I719.  87 

of  any  other  rule  appears,  and  it  would  seem  that  even  these 
rules  were  not  formally  adopted  by  succeeding  assembHes.  Thus 
informally  was  custom  allowed  to  develop.  No  reports  of  divi- 
sions on  proceedings  are  given  on  any  regular  plan.  The  num- 
bers of  each  side  were  occasionally  mentioned,  but  no  principle 
appears  in  the  reasons  for  such  mention.  Various  systems  of 
fines  for  absence  from  roll-call  were  tried  by  the  assembly  for 
the  purpose  of  obtaining  a  quorum,  but,  apparently,  with  indiffer- 
ent success. 

The  committee  system  of  the  assembly  was  in  process  of 
gradual  evolution  throughout  the  period,  and  could  hardly  be  de- 
scribed as  having  attained  systematic  form  at  any  time.  The 
committee  which  sat  most  often  was  the  "Committee  of  the  Whole 
House,"  or  "Grand  Committee,"  —  usually  "to  consider  of  His 
Excellency's  Speech,"  always  in  consideration  of  supply  bills, 
and,  in  general,  for  matters  of  large  importance  and  interest. 
The  "Committee  on  Undue  Elections,"  or  "Committee  on  Priv- 
ileges and  Elections"  has  already  been  mentioned.  The  "Griev- 
ance Committee"  was  the  one  which  came  the  nearest  to  the 
present  notion  of  a  standing  committee.  In  some  form  or  other, 
we  find  such  a  committee  in  use  from  the  very  beginning  of 
tlie  period.  Sometimes  a  committee  was  appointed,  "to  inquire 
into  the  grievances  of  this  Province,"  and  to  make  a  report 
within  a  limited  time.  Sometimes  it  was  ordered,  that  all  mem- 
bers be  a  committee  of  grievances,  "to  receive  and  report  oppres- 
sions of  the  people  and  make  report  as  Grievance  may  appear." 
In  a  period  when  public  opinion  was  excited,  such  a  committee 
was  likely  to  consist  of  the  most  active  leaders  of  the  majority, 
and  its  activities  might  extend  to  any  subject  agitating  the  public 
mind.^  It  was  such  a  committee  that  conducted  a  kind  of  trial 
of  the  persons  concerned  in  the  extravagant  grants  of  land  by 
Fletcher.  We  find  the  assembly  exhibiting  an  accusation  against 
the  parties  concerned,  who  in  time  present  an  answer,  to  which 
the  committee  of  grievances  prepare  a  replication.  The  act 
vacating  these  grants  was  passed  at  this  session.^ 

The  assembly  sometimes  chose  to  embody  its  sense  of  griev- 
ance in  an  "Address  to  the  Governor,"  which  would  be  likely 
to  include  the  subjects  with  which,  at  other  sessions,  the  griev- 

'Ass.  J.  I.  20,  33,  96-101. 
'Ibid.  96-104. 


88  PHASES    OF    ROYAL    GOVERNMENT 

ance  committee  concerned  itself.  In  17 13,  at  the  height  of  the 
revenue  controversy,  the  assembly  ordered,  that  they  "resolve 
every  Thursday  P.  M.  into  a  Committee  for  Redress  of  Griev- 
ances, and  every  Friday  P.  M.  into  a  Committee  for  Reformation 
of  Abuses  in  the  Courts  of  Justice" ;  and  after  a  report,  three 
weeks  later,  bills  were  ordered  in  accordance  with  the  report, 
and  the  committee  ordered  to  be  adjourned.^  The  reports  of 
the  grievance  committee  covered  every  variety  of  subject,  from 
that  of  the  wrongs  of  the  boatmen  of  New  York  in  having  to 
pay  dockage  for  use  of  the  Queen's  wharf,  to  the  grievance  of 
the  province  in  the  erection  of  a  Court  of  Chancery,  without 
consent  of  the  general  assembly,  and  in  the  appointment  of  cor- 
oners.^ The  appointment  of  special  committees  on  particular 
bills  was  common  throughout  the  period.  The  first  assembly 
ordered,  that  for  the  recess,  the  New  York  members  and  others, 
when  they  should  be  in  town,  be  a  committee  "to  examine  .  .  . 
and  prepare  to  report  to  this  House  at  the  next  session  all  such 
Matters  and  Things  whatsoever  as  may  conduce  to  the  good  and 
welfare  of  this  government."  But  we  find  no  repetition  of  this 
proceeding.^ 

Beyond  the  habit  of  referring  bills  to  special  committees,  or 
to  "the  Council  or  any  two  of  them,"  or  "the  Council  or  any  three 
of  them,"  it  does  not  appear  that  the  council  had  any  committee 
organization. 

The  officers  of  the  assembly  were,  besides  the  speaker,  a 
clerk,  a  sergeant  at  arms,  a  doorkeeper  and  a  printer.  These 
were  at  first  appointed  by  the  governor,  though  they  were  de- 
pendent for  their  compensation  on  warrants  upon  the  revenue, 
issued  by  the  governor  and  council,  on  address  of  the  assembly. 
Under  the  circumstances  of  the  failure  of  the  revenue,  and  the 
disputes  over  payments  of  salaries  in  the  times  of  Cornbury  and 
Hunter,  the  officers  suffered  considerably;  and  we  find  acts  for 
the  payment  of  their  salaries,  and  for  empowering  the  clerk  to 
receive  a  reasonable  fee  for  "passing  a  private  bill."  The  "long 
bills"  of  1714  and  1717  provided  for  payment  of  arrears  to  the 
officers ;  and  in  the  resolves,  in  accordance  with  which  the  gov- 
ernor, after  171 5,  issued  salary  warrants  on  the  revenue  estab- 


'  Ass.  J.  I.  170,  334,  336,  377. 
Mbid.  150-1,  224,  226-30. 
'Ibid.  13. 


IN    NEW    YORK^     169I-I719.  89 

lished  by  the  assembly,  provision  was  made  for  these  officials.* 
The  sergeant  at  arms  seems  not  to  have  been  a  permanent  official, 
but  to  have  been  appointed  by  the  governor,  on  motion  of  the 
assembly,  whenever  necessity  for  his  services  developed.^  After 
failing,  at  the  first  session  of  the  first  assembly,  to  establish  the 
drawing  of  bills  for  the  assembly  as  one  of  the  duties  of  the 
attorney  general,  the  house  seems  to  have  made  use  of  the  ser- 
vices of  the  speaker  for  that  purpose  —  with  what  means  for 
rewarding  him,  is  not  clear.^ 

The  council's  officers  were  a  clerk,  a  doorkeeper  and  mes- 
senger, and  a  sergeant  at  arms,  and  their  salaries,  as  established, 
were  drawn  from  the  revenue.* 

Coming  to  the  matter  of  privilege,  we  find  one  curious  case, 
which  seems  to  raise  the  question  of  a  peculiar  privilege  of  the 
council  in  its  legislative  capacity.  Without  going  into  its  details 
it  may  be  sufficient  to  remark  that  the  council's  contention  was 
founded  upon  the  notion,  that  "this  house  dureing  the  sessions 
of  Assembly  was  Invested  with  a  greater  power  as  being  part  of 
that  Constitution,  than  at  other  times  in  the  Quality  of  Governor 
and  Council" ;  that,  "in  such  cases  the  Governor  and  Council  have 
dureing  the  Session  a  judiciall  power  like  that  of  the  House  of 
Lords  in  England  and  can  hear  and  determine  civil  causes  (not 
appealable  to  the  King)  and  imprison  the  parties  offending." 
Objection  was  brought  against  this  proceeding  in  England,  and 
the  attempt  was  not  repeated.^ 

The  privileges  of  the  assembly,  as  demanded  at  the  beginning- 
of  every  session  by  the  speaker,  and  confirmed  by  the  governor, 
were  as  follows :  freedom  of  members  and  their  servants  from 
arrest  and  molestation  during  the  sessions,  freedom  of  speech  and 
of  debate  in  the  house,  a  favorable  and  candid  construction  upon 
all  words,  freedom  of  access  to  the  governor  and  council  in  rela- 
tion to  the  present  service,  "for  the  Removal  of  all  Misunder- 
standings between  the  Governor  and  Council  and  this   House: 


'  Ass.  J.  I.  193,  199,  202,  310.     Col.  Laws  I.  815-26,  938-991. 
'  Ass.  J.  I.  4,  147. 
'  Ass.  J.  I.  512.    J.  of  L.  C.  I.  34. 
*Col.  Mss.  XLV.  170. 

'  Col.  Doc.  IV.  821.     Col.  Laws  I.  392.    J.  of  L.  C.  I.  128-131.     N.  Y. 
Hist.  Soc.  Colls.  1869,  179-183. 


90  PHASES    OF    ROYAL    GOVERNMENT 

that  a  Committee  of  the  Council  may  join  with  a  Committee  of 
this  House  to  confer  on  such  Matters  as  occurs,"  and  that  these 
privileges  be  entered  on  the  council  book.  They  were  frequently 
stated  in  a  more  abridged  form,  and  summed  up  in  the  expression 
—  "and  all  other  their  ancient  privileges  and  customs."  The  spirit 
in  which  the  whole  matter  of  privilege  was  developed  is  indicated 
in  the  reply  of  confirmation  made  by  Cornbury  —  "that  he  knew 
them  to  be  the  Rights  of  the  House  of  Commons  of  the  Kingdom 
of  England  and  of  this  xA.ssembly  and  therefore  he  did  entirely 
confirm  them  as  large  as  ever  they  were  granted."^  The  assembly 
defended  itself  against  "contemners"  of  its  privileges,  both  mem- 
bers and  others,  within  and  outside  the  precincts  of  the  house, 
generally  by  commitment  to  the  custody  of  the  sergeant  at  arms, 
to  whom  fees  had  to  be  paid  on  discharge.  On  one  occasion, 
three  persons,  apparently  for  insolent  behaviour  before  a  com- 
mittee of  the  assembly,  were  kept  in  the  custody  of  the  sergeant 
at  arms  from  i8  November,  1702,  till  17  April,  1703,  their  im- 
prisonment covering  a  period  between  sessions.^  One  Christo- 
pher Den,  for  insolent  conduct  to  a  member  outside  the  precincts 
of  the  house,  was  punished  by  a  month's  imprisonment.^  The 
assembly  seem.s  to  have  been  somewhat  capricious  in  its  treat- 
ment of  the  matter  of  privilege.  David  Provoost,  a  member, 
petitioned  the  assembly  for  his  enlargement  from  arrest  for  not 
having  paid  certain  orphans'  portions,  pleading  the  privilege  of 
the  assembly,  but  seems  not  to  have  been  successful.'^  An  at- 
tempt by  the  governor  to  hold  up  bills  which  the  assembly  had 
passed  and  sent  up  to  the  governor  and  council  for  assent,  till 
the  desire  of  the  government  had  been  attained  by  the  passage 
of  a  supply  bill  by  the  assembly,  seems  to  have  been  regarded 
by  that  body  as  an  invasion  of  their  privileges  —  "it  being  the 
Privilege  of  this  House  to  send  up  their  Bills  when  they  please." 
On  this  occasion  the  assembly  seems  to  have  won  its  point,  though 
the  imperfection  of  the  journal  obscures  the  matter.  Ever  after, 
the  assembly  was  strict  about  the  requirement  of  some  action  by 
the  council  on  measures  sent  up  by  them,  and   return  of  such 


^Ass.  J.  I.  145. 

'Ass.  J.  I.  153,  156-9. 

'  Ibid.  233-4,  236-8. 

*  Ibid.  290,  293,  300,  301,  303,  309. 


IN    NEW    YORK^     169I-I719.  QI 

action  to  the  assembly  before  proceeding,  itself,  to  do  anything 
further  in  the  matter.^ 

In  general,  the  assembly  seems  to  have  made  free  use,  for 
its  own  purposes,  of  the  whole  range  of  parliamentary  privilege, 
adapting  it  liberally  to  local  and  pecuHar  requirements.  Hunter's 
opinion  was  that  *'the  warmest  Assembly  of  Men  in  the  most 
tumultuous  times  never  strained  the  word  Privilege  to  that  bent 
that  they  dayly  doe."^ 

The  pay  of  the  representatives  was  fixed  by  an  act  of  the 
first  assembly,  at  ten  shillings  per  day  of  attendance,  beginning 
with  the  day  of  leaving  home,  not  more  than  eight  days  before 
the  meeting,  till  their  return,  not  more  than  eight  days  after  ad- 
journment. The  expense  was  to  be  borne  by  the  county  or  city 
sending  the  representative.^  This  act  was  repealed  by  an  act 
of  assembly  in  1701,  which  fixed  the  rate  of  compensation  at  six 
shillings  per  day ;  but  as  this  was  itself  repealed  by  a  general 
repealing  act,  which  was  not  disallowed  till  1708,  the  rate  of  ten 
shillings  prevailed  for  nearly  twenty  years.  Both  rates  were 
considered  by  Hunter  as  too  high,  constituting  an  inducement  to 
the  representatives  to  prolong  their  sessions  and  protract  con- 
troversies in  the  legislature,  for  the  sake  of  the  per  diem  allow- 
ance.'^ On  the  other  hand,  the  counties  were  lax  or  neglectful 
in  the  payment  of  the  allowance ;  and  acts  for  its  payment,  and 
for  the  payment  of  arrears,  in  the  case  of  particular  individuals, 
were  frequently  resorted  to.^  The  revenue  act  of  171 5  provided 
for  the  payment  of  an  allowance  of  ten  shillings  per  diem,  out 
of  the  revenue  for  the  year  171 5.  This  arrangement.  Hunter 
hoped  would  be  "a  considerable  ease  to  the  County's,"  and 
would  cause  the  return  of  members  with  instructions  to  continue 
this  plan  by  an  act,  and  to  repeal  the  former  law,  "which  hath 
been  of  so  pernicious  Consequence  to  the  Government  and  peo- 
ple." This  method  was  continued  in  slightly  different  and  vary- 
ing forms  during  the  remainder  of  the  period.^ 


^Ass.  J.  I.  16,  18,  82,  155,  214. 

'  Wilson,  Mem.  Hist.  II.  595.     Col.  Doc.  V.  179. 

'Col.  Laws  I.  239. 

*  Col.  Doc.  V.  179,  192,  416. 

"Col.  Laws  I.  586,  702,  791,  921,  929,  989. 

•  Col.  Doc.  V.  416,  417.     Col.  Laws  I.  916,  921,  989-91.     Ass.  J.  I.  375. 


92  PHASES    OF    ROYAL    GOVERNMENT 

The  evolution  of  procedure  in  trie  conduct  of  business  v^ithin 
each  house,  and  in  the  relations  of  the  houses  to  each  other  was 
a  gradual  process.  The  council  seems  to  have  gone  through 
with  its  share  of  legislative  business  without  any  elaborate  forms 
of  procedure.  Each  bill  coming  from  the  assembly  received  three 
readings,  after  the  first  of  which,  usually,  it  was  referred  to 
"the  members  of  this  Board,"  or  any  three  or  five  of  them,  as  a 
special  committee  on  that  bill.  If  amendments  reported  by  such 
a  committee  were  agreed  to  by  the  council,  the  clerk  was  then 
ordered  to  make  the  amendments  in  the  bill,  which  was  then 
sent  down,  with  the  amendments,  to  the  assembly  for  concur- 
rence. This  latter  feature  of  procedure,  and  the  notification  to 
the  assembly  upon  occasion,  that  such  and  such  a  bill  had  passed 
without  amendment,  were  reached  only  after  the  better  separa- 
tion of  powers  of  those  concerned  in  legislation  had  been  attained 
in  the  times  of  Bellomont  and  Cornbury. 

In  the  assembly,  the  governor's  speech  was  normally  the 
starting-point  of  activity.  Though  satisfied  at  first  with  the  speak- 
er's repetition  of  the  heads  of  the  discourse,  the  assembly  before 
long,  fearful  lest  "some  may  have  been  omitted  in  the  recital," 
began  to  require  a  copy,  even  insisting  that  the  copy  be  attested 
by  the  clerk  of  the  council.^  With  the  speech  thus  officially 
before  it,  the  assembly  proceeded  to  consider  it  in  committee  of 
the  whole,  item  by  item,  reporting  resolves  upon  each  item  from 
time  to  time.  Sometimes  certain  items  were  referred  to  special 
committees,  on  whose  report,  as  upon  reports  of  the  committee 
of  the  whole,  bills  would  be  ordered  to  be  brought  in.  Some- 
times also  the  assembly  voted  as  to  which  of  the  items  in  the 
speech  should  be  taken  up  first.^  Whether  a  subject  was  brought 
before  the  assembly  by  mention  in  the  speech,  or  by  petition  to 
the  assembly,  or  on  a  motion  by  a  member,  it  was  usual  for  the 
body  to  consider  it,  or  vote  as  to  when  they  would  consider  it; 
then,  either  to  resolve  upon  it  and  order  a  bill  to  be  brought  in 
accordingly,  or  consider  it  in  committee  of  the  whole,  and,  upon 
agreement  of  the  assembly  to  the  report  of  the  committee,  order 
a  bill.  A  bill  was  always  read  three  times  before  passage  and 
sending  up  for  assent,  but  at  first  these  three  readings  might  all 
occur  at  the  same  day's  session.     Later,  however,  it  was  more 


'  Ass.  J.  I.  36,  55. 
'Ass.  J.  I.  93,  160-1. 


IN    NEW    YORK^     169I-I719.  93 

customary  for  a  bill  to  be  referred  to  a  special  committee  after 
the  first  or  second  reading,  and  for  the  amendments  reported  by 
this  committee  to  be  acted  upon,  before  the  bill  was  ordered  ta 
be  en.^TOssed.  This  engrossed  bill  was  then  given  a  third  read- 
ing, and  ordered  to  be  sent  up  to  the  council  "for  their  con- 
currence." It  sometimes  happened  that  a  bill  was  referred  to 
three  different  committees,  before  a  report  satisfactory  to  the 
assembly  could  be  obtained.  And  there  might  be  several  commit- 
tees at  work  upon  different  aspects  of  the  same  subject,  the  re- 
ports of  all  being  made  use  of,  when  the  committee  of  the  whole 
reported  resolves,  upon  which  the  bill  was  constructed.^  In  the 
early  part  of  the  period  a  case  arose  of  a  committee  feeling  itself 
in  difficulty  and  calling  in  the  speaker  to  its  assistance.^  This 
feeling  of  inexperience,  at  first  at  any  rate,  made  it  necessary  that 
the  speaker  should  be  either  a  lawyer,  as  was  the  case  with  Gra- 
ham and  Nicolls,  who,  with  two  very  brief  exceptions,  were  the 
only  persons  holding  the  offfce  of  speaker  for  the  first  thirty 
years  ;  or  a  person  in  the  position  of  an  unquestioned  party  leader, 
as  was  Gouverneur,  during  his  speakership  in  1700-1701.  The 
assembly,  at  its  first  session  in  1691,  tried  to  make  use  of  the 
attorney  general's  services  in  drav^nn^  bills,  and  the  governor  at 
first  acquiesced.  But  on  his  later  decision  that,  according  to  the 
instructions,  this  was  no  part  of  the  attorney  general's  duties, 
the  assembly  laid  the  services  of  the  speaker  under  contribution, 
addressing:;-  tlie  governor  and  council  for  special  compensation  for 
him.  Later,  however,  that  is,  in  Cornbury's  time,  the  attorney 
general  drevv^  bills  for  the  assembly,  and  in  the  "long  bill"  of 
1 7 14  for  payment  of  the  public  debts,  we  find  an  item  in  favor 
of  Lewis  Morris  for  services  in  this  matter.^ 

In  its  relations  with  the  council,  the  assembly  was  inclined 
to  be  strict  in  requiring  decisive  action  by  the  council  on  an  as- 
sembly bill,  before  proceeding  in  response  to  suggestions  by  the 
governor  upon  new  or  different  legislation  on  the  same  subject.* 

The  sessions  of  both  houses  were  private,  but  they  kept  track 
of  each  other's  proceedings  to  an  extent,  the  governor  and  council 
receiving  the  printed  proceedings  of  the  assembly  each  day,  and 


'Ass.  J.   I.  314-17,  137,  140,  142,  148-9,  261. 

'Ibid.  29. 

'Ass.  J.   I.  5-12,  41-46,  166.    J.  of  L.   C.   I.  84.     Col.  Laws  I.  962. 

*  Ass.  J.  I.  82,  155. 


94  PHASES    OF    ROYAL    GOVERNMENT 

occasionally  sending  messages  urging  action ;  while  the  assembly 
might  appoint  a  committee  to  inspect  the  council  journal  and 
report  what  action  had  been  taken  on  bills  sent  up,  and,  as  a  result, 
address  the  council  on  the  subject  of  favorite  measures.^  Occa- 
sionally the  governor  wrote  to  the  speaker,  asking  him  to  urge 
certain  measures  on  the  assembly.  Agreement  or  disagreement 
with  bills  or  amendments  was  signified  by  messages  which  were 
sent  back  and  forth  betv/een  the  houses,  and  differences  were 
adjusted  at  conferences,  both  formal  and  free.  The  assembly 
occasionally  developed  great  scruple  about  keeping  to  the  subject- 
matter  for  which  a  conference  was  appointed,  and  on  one  of 
the  occasions  when  it  was  opposing  the  council's  right  to  amend 
money  bills,  refused  to  go  into  conference  on  such  a  bill.-  There 
seems  to  have  been  no  attempt  on  the  part  of  the  assembly  to 
deny  the  right  of  the  council  to  initiate  legislation,  nevertheless 
the  right  was  not  exercised  very  vigorously.  For  some  purposes, 
even,  a  conference  between  committees  from  each  house  consti- 
tuted the  initial  step  in  legislation.  This  was  frequently  the  case 
with  bills  for  supply  for  military  purposes ;  and,  at  the  time  of 
the  Canada  expeditions  of  1709  and  171 1,  such  a  joint  committee 
was  kept  almost  continuously  in  existence  to  facilitate  the  work 
of  preparation.^  The  council's  right  to  amend  money  bills  was, 
however,  denied  by  the  assembly,  beginning  with  1703  during 
the  struggle  for  the  appointment  of  a  Colony  Treasurer.  This 
was  an  unprecedented  stand  for  the  assembly  to  take,  and  was 
resented  by  the  council,  which  was  able  to  cite  many  instances 
of  a  contrary  practice  in  the  previous  history  of  the  province. 
It  was  also  formally  condemned  by  the  Lords  of  Trade.  The 
assembly,  however,  had  its  way  in  the  matter,  and  did  not  hesi- 
tate at  the  inconsistency  of  resolving,  upon  occasion,  that  such 
and  such  a  bill,  amendments  to  which  by  the  council  it  was 
willin^T  to  consider,  was  not  to  be  considered  a  money  bill.  In 
one  case,  a  bill  raising  and  authorizing  the  payment  of  public 
money  was  so  treated.'* 

This  brings  us  to  the  comparative  position  of  the  council  and 
assembly   in   the   government.     Contemporary   estimates  on   this 


'Ass.  J.  I.  72-3,  237,  254,  319.     Smith,  p.  365. 

'Ass.  J.  I.  72-3,  327. 

'  Ibid.  48,  247. 

"  Ass.  J.  I.  157-215.     J.  of  L.  C  I.  189-245. 


IN  NEW  Yi8?^J'"i'69i-i7i9.  95 

point  are  conflicting.  The  local  magnate  character  of  the  council 
has  been  referred  to.  The  membership,  as  a  whole,  was  fairly 
representative  of  the  leading  classes  in  the  political  life  of  the 
province.  Opinion  as  to  the  general  character  of  the  membership 
of  the  assembly  seems  to  have  been  unfavorable.  Golden  and 
Smith  agree  in  emphasizing  the  features  of  ignorance,  even  illit- 
eracy, and  the  predominance  of  a  narrowly  local  point  of  view 
on  public  questions,  Colden's  views  as  to  their  integrity  were 
equally  pessimistic.  "When  Mr.  Hunter  came  to  his  govern- 
ment," says  Golden,  "he  thought  that  an  American  Assembly 
might  be  governed  by  reason,  but  experience  taught  him  that  it 
was  a  vain  imagination.  It  may  be  a  question  whether  man- 
kind in  general  can  be  governed  otherwise  than  by  their  affec- 
tions. For  that  reason  wise  legislators  found  means  to  raise 
artificial  affections  to  control  the  natural."  Hunter's  system  of 
relations  with  the  members  of  the  Assembly,  by  means  of  which 
he  brought  the  revenue  question  and  questions  allied  with  it  in 
his  time  to  a  settlement,  would  seem  to  have  been  in  Golden's 
mind  when  he  wrote  as  above,  for  he  relates  with  great  gusto 
Hunter's  indignation  at  being  obliged  "to  rake  in  the  dunghill  of 
these  people's  vile  affections."^ 

Opinions  as  to  the  position  and  influence  of  the  council  in 
the  government  vary  with  the  circumstances  of  the  province,  and 
with  the  point  of  view  of  the  oljserver.  Golonel  Quary  expresses 
the  opinion  in  1709,  that  "the  Generality  of  the  Gouncils  being 
Gentlemen  of  the  Gountry  are  wholly  in  the  interest  of  the  as- 
sembly and  as  ready  to  lessen  the  Prerogative  in  all  things  as 
they  are."-  This  was  from  a  zealous  imperial  official,  at  a  time 
when  the  governor,  Gornbury,  had  succeeded  in  alienating  all 
elements  in  turn,  and  had  practically  compelled  them  to  unite 
against  him  and  crowd  him  out,  by  displaying  to  the  home  gov- 
ernment the  impossibility  of  co-operating  with  him.  Hunter,  on 
the  other  hand,  a  governor  who  was  personally  popular,  and  who 
had  an  ambition  to  make  local-provincial  and  general-imperial 
interests  serve  each  other,  found  ready  support  in  the  council 
against  the  assembly's  attempt  to  settle  the  revenue  in  a  manner 
contrary  to  the  instructions.  He  testifies  in  behalf  of  the  council 
that  he  must  "do  them  the  justice  to  declare  that  I  think  that  it 

'Smith,  371.     N.   Y.  H.   S.  Colls.   1868,  205-6. 
'Col.  Doc.  V.  116. 


96  PHASES    OF    ROYAL    GOVERNMENT 

is  not  possible  for  men  in  their  station  to  behave  with  more  virtue 
and  resolution  with  regard  to  H.  M.  Right  and  Prerogative"  — 
with  the  exception  of  one  member.^  On  the  whole,  Greene's 
summary  statement  for  the  colonies  in  general  would  seem  to 
describe  the  situation  in  New  York  during  this  period — "although 
it  would  be  a  mistake  to  suppose  that  the  Council  was  always 
or  necessarily  under  the  control  of  the  Governor  yet  ...  it 
was  usually  on  the  Governor's  side  in  his  contests  with  the  As- 
sembly, exercising  on  the  whole  a  conservative  influence."^ 

The  marked  development  of  the  powers  of  the  assembly,  as 
manifested  in  the  struggle  for  control  of  expenditure,  which  is 
described  in  a  later  chapter,  wrought  great  change  in  the  com- 
parative position  of  the  two  houses.  The  imperious  necessity  for 
a  working  relation  between  the  governor  and  the  revenue-grant- 
ing body,  coming  out  with  particular  clearness  in  Hunter's  time, 
directed  to  the  proceedings  of  the  assembly  much  of  the  atten- 
tion and  manipulation,  of  which,  till  then,  the  council  had  had 
the  greater  share.  The  activity  in  the  assembly,  which  was  kept 
up  by  such  men  as  Morris  and  Livingston  —  both  of  them  men  of 
council  calibre  —  together  with  their  relation  with  the  governor 
in  the  capacity  of  leaders  in  the  assembly  aflfords  eloquent  testi- 
mony to  the  increased  significance  of  the  lower  house.  The 
mediocre  character  of  its  average  membership  would  render  that 
body  peculiarly  susceptible  to  the  "management"  of  men  of  lead- 
ing capacity,  who  chose  to  develop  the  possibilities  of  a  relation 
between  the  governor  and  the  representatives  of  the  community 
at  large,  as  against  the  class  interests  so  effectively  intrenched 
in  the  council.  This  development  seems  to  have  been  going  on 
during  that  portion  of  Hunter's  administration  which  succeeded 
the  passage  of  the  revenue  act  in  171 5.  We  have  unmistakable 
testimony  from  such  competent  observers  as  George  Qarke  and 
Lewis  Morris,  Jr.,  of  the  decline  of  the  council's  power  during 
this  time.  And  it  was  not  until  the  separation  of  the  council's 
executive,  from  its  legislative  functions,  was  accomplished  by 
the  removal  in  1736  of  the  governor  from  the  presidency  of  the 
legislative  council,  that  anything  like  a  restoration  of  the  council 
to  its  former  position  was  achieved. 


Col.  Doc.  V.  185. 

Greene :     Provincial  Governor  p.  90. 


CHAPTER  IV.     FINANCIAL  AFFAIRS  BEFORE   1709. 

It  was  peculiarly  true  of  New  York  that  the  conduct  of 
finance  in  its  dynamic  aspect  was  intimately  associated  with  the 
constitutional  history  of  the  province.  Contest  over  its  manage- 
ment was  perennial,  and  it  was  in  terms  of  this  struggle  that 
many  other  contests  in  the  first  stage  of  full-fledged  provincial 
existence  finally  came  to  be  settled.  It  was  the  contest  through 
which  the  province  groped  to  political  self-consciousness  and  to 
an  activity  in  which  the  issues  were  of  a  higher  order  than  those 
of  factional  hatred  or  personal  intrigue.  It  was  constant,  pro- 
gressive development  of  this  department  of  activity  which  finally 
brought  the  power  of  the  crown,  wielded  by  a  governor  person- 
ally popular  and  estimable,  face  to  face  with  the  local  provincial 
power  in  such  a  way  as  to  force  a  compromise. 

The  ideal  of  the  prerogative  party,  as  contained  in  the  com- 
mission and  instructions  and  in  the  governor's  addresses  to  the 
assembly,  was  that  the  assembly  should  raise  money  for  public 
purposes  and  that  this  should  be  expended  under  the  direction  of 
the  governor  and  council.  The  ideal  of  the  "country  party," 
like  the  party  itself,  was  only  gradually  conceived  and  developed. 
Till  the  disposition  to  use  the  public  policy  of  the  province  as  an 
opportunity  to  give  vent  to  manifestations  of  extreme  partisan 
violence  was  outgrown  or  relegated  to  the  background,  there  could 
be  no  political  force  possessed  of  the  steadiness  of  aim  and  con- 
stancy of  composition  which  were  required  to  constitute  a  patri- 
otic opposition.  As  thus  gradually  conceived  and  developed,  the 
program  of  resistance  to  the  government  ideal  was  centred  on 
the  acquisition  of  increasing  power  over  expenditure  by  the  as- 
sembly. In  the  course  of  this  struggle  the  assembly  freely  used 
its  recognized  power  of  the  purse  as  a  weapon  for  gaining  further 
advantage.  The  struggle  over  control  of  expenditure  was  long 
in  shaping  itself.  When  it  had  finally  attained  recognizable 
form,  the  prerogative  party  made  no  attempt  to  deny  the  taxing 
power  in  all  its  fullness  as  possessed  by  the  assembly.  But  by 
keeping  control  of  the  regulation  of  the  fee  system  and  by  at- 
tempting to  develop  the  crown's  territorial  revenue  as  a  source 
7  (97) 


98  PHASES    OF    ROYAL    GOVERNMENT 

of  supply  beyond  the  assembly's  reach,  they  tried  to  neutralize 
the  revenue-raising  power  of  the  assembly  in  reference  to  the 
support  of  government,  v^hile  resisting  all  attempts  by  the  latter 
body  to  reserve  control  of  expenditure  to  itself.  The  final  result 
of  the  struggle  was  practically  a  victory  for  the  assembly,  inas- 
much as,  whatever  the  forms  traversed,  substantial  control  of 
expenditure  of  all  important  items  of  income  for  the  usual  pub- 
lic purposes  was  achieved.  This  process,  when  finally  completed, 
involved  a  balance  of  constitutional  forces  actually  effective  within 
the  province,  which  constituted  a  compromise  that  was  to  an 
extent  inconsistent  with  the  imperial  idea  of  a  royal  province. 
The  process,  as  has  been  hinted,  was  long.  Not  until  nearly 
thirty  years  after  the  settlement  of  1691  was  an  equilibrium  of 
any  stability  reached.  Two  stages  may  be  recognized  in  the 
process.  The  period  from  1691  to  1709  was  one  in  which  the 
attempt  of  the  lower  house  to  attain  greater  control  over  ex- 
penditure was  carried  on  against  heavy  odds.  With  blind  ab- 
sorption in  the  partisan  aspects  of  politics,  the  grants  by  the 
assembly  of  revenue  for  the  constant  charges  of  government  were 
made  for  periods  far  in  advance  of  the  time  of  passage  of  the 
acts,  in  order  to  gain  the  governor's  complaisance  in  party  legis- 
lation. Hence,  till  the  expiration  of  these  grants  in  1709,  there 
was  no  opportunity  to  realize  the  potentialities  of  the  assembly 
in  enforcing  its  program.  This  semi-paralysis  was  improved  to 
advance  the  personal  interests  of  a  small  group  of  unscrupulous 
characters  surrounding  the  inefificient  Cornbury  —  to  the  conse- 
quent ruin  of  the  credit  of  the  government.  The  second  stage 
is  occupied  with  a  direct  controversy  between  a  governor  who 
was  personally  esteemed  in  the  province,  an  "Empire-builder"  of 
sagacious  views,  and  the  assembly.  That  body  was  moved  by 
resentment  at  the  destruction  of  public  credit  already  accom- 
plished, by  the  conviction  that  the  disaster  was  chargeable  to 
the  system  as  well  as  to  its  perversion  by  individuals  and  by 
a  resolution  against  any  arrangement  for  the  future  which  could 
possibly  permit  of  a  repetition  of  the  catastrophe.  The  contro- 
versy was  settled  by  an  exceedingly  complex  compromise,  one  of 
the  important  features  of  which  was  the  removal,  to  a  hopeful 
degree,  of  the  most  harmful  phases  of  Leislerian  faction  from 
the  domain  of  politics.     It  was  in  the  course  of  the  evolution  of 


IN    NEW    YORIs     169I-I719.  99 

arrangements  which  were  designed  to  protect  this  settlement  that 
a  new  balanced  system  of  provincial  forces  acquired  momentum. 
In  reviewing  the  financial  system  of  the  province  during  the 
period  from  1 691  to  1709,  —  the  stage  of  preparation  and  educa- 
tion as  it  were, —  it  will  be  convenient  to  consider  the  sources  and 
method  of  provision  of  revenue  of  various  kinds,  and  then  the 
method  of  expenditure,  giving  particular  attention  to  attempts 
by  the  assembly  to  secure  increasing  control  of  the  latter.  The 
passages  in  the  commission  and  instructions  bearing  on  public 
income  are  concerned  chiefly  with  the  forms  to  be  used  in  granting 
money,  and  apparently  take  for  granted  the  control  of  the  taxing 
and  money-granting  power  by  the  assembly.  Those  who  were 
animated  by  provincial  ideals  would  have  had  the  matter  more 
explicitly  stated,  and  in  the  so-called  Charter  of  Liberties  of  1683 
and  in  the  "Act  declaring  .  .  .  the  Rights  and  Privileges  of 
.  .  .  Subjects  in  New  York,"  passed  in  1691,  the  phraseology 
of  Magna  Carta  and  of  the  Petition  and  Bill  of  Rights  is  em- 
ployed to  confine  the  taxing  power  in  the  hands  of  the  legis- 
lature.^ These  acts  were  disallowed,  it  is  true,  but  in  practice 
the  principle  thus  explicitly  stated  was  not  violated  except  in 
the  most  indirect  manner.  The  chief  sources  of  income,  as 
familiarly  considered,  were  *'The  Revenue"  and  "Taxes."  The 
distinction  was  based  on  practical  grounds  rather  than  abstractly 
scientific  principles.  The  phrase,  "The  Revenue,"  came  early  to 
be  applied  with  special  meaning  to  public  monies  of  a  certain 
character,  those  that  under  settled  conditions  of  provincial  life 
were  likely  to  be  fairly  constant  in  yield  and  thus  well  adapted  to 
meet  the  permanent  and  standing  part  of  the  public  expenses  — 
the  "ordinary  support  of  government."  In  some  ways,  "The  Rev- 
enue" may  fairly  be  compared  with  the  "Consolidated  Fund," 
later  established  in  the  English  financial  system.  The  larger 
number  of  the  items,  and  those  the  most  productive,  which  came 
from  this  source,  were  dependent  on  votes  of  grant  by  the  assem- 
bly. The  component  parts  of  the  revenue  were :  duties  on  trade 
—  generally  referred  to  as  the  "customs," —  the  excise,  quit- 
rents,  fines  and  forfeitures,  the  weigh-house  duties  and  certain 
relics  of  the  regalian  rights  of  the  crown,  such  as  the  license  .to 
take  royal  fish. 


Col.  Doc.  III.  819.     Col.  Laws  I.  113,  246. 


lOO  PHASES    OF    ROYAL    G0VERNMR>3T 

The  customs,  for  the  first  twelve  years  after  169 1  averaged 
about  two-thirds  of  the  revenue.^  The  system  continued  till  1709 
to  be  practically  that  established  in  1683  by  the  Dongan  assembly. 
It  consisted  of  duties  on  imports  of  distilled  liquors,  wines,  and 
merchandise  and  duties  on  exports  of  fur.  The  export  duties 
were  specific,  and  were  accompanied  by  schedules  of  valuation; 
and  duties  and  valuations  remained  practically  unchanged  until 
1709.  In  connection  with  the  duty  on  exported  furs  the  act  of 
1683  provided  for  what  amounted  to  a  Hcense  of  ten  per  cent,  on 
transaction  in  furs  within  the  province.  This  appears  in  the 
revenue  act  of  1691,  but  after  that  was  dropped.  The  duties 
on  imported  liquors  were  specific  and  remained  fixed,  except  for 
a  reduction  of  the  duty  on  rum  sent  up  the  river  for  the  Indian 
trade.  There  was  more  development  in  the  system  of  duties  on 
imported  merchandise.  The  act  of  1683  and  the  explanatory  act 
of  1684  imposed  a  duty  of  two  per  cent,  on  merchandise,  with  a 
list  of  exemptions  which  included  farm  products  of  the  neigh- 
boring colonies  on  the  mainland  and  a  number  of  semi-tropical 
products  from  the  island  colonies,  as  well  as  certain  building 
materials.  An  additional  duty  of  ten  per  cent,  was  laid  on  "In- 
dian goods,"  and  specific  duties  on  arms  and  ammunition  and 
rum,  when  sent  up  the  river.  A  schedule  of  valuations  for  each 
variety  of  Indian  goods  was  provided.  This  system  was  con- 
tinued by  the  act  of  1691.  But  in  1692  the  duty  of  ten  per  cent, 
on  Indian  goods  sent  up  the  river,  in  addition  to  the  two  per 
cent,  on  general  merchandise  on  importation,  was  changed  to  a 
system  which  laid  a  five  per  cent,  duty  on  all  Indian  goods  on 
importation,  in  addition  to  the  two  per  cent,  duty  which  the  same 
goods  had  already  paid  as  general  merchandise.  The  ten  per 
cent,  tax  on  transactions  in  furs  also  disappeared  at  this  time. 
The  specific  duties  on  arms  and  ammunition  and  rum  sent  up 
the  river  remained  till  1700,  when  the  four  pence  per  gallon  on 
rum,  thus  designed  for  the  Indian  trade,  was  dropped.^ 

The  productiveness  of  this  item  of  the  revenue  would  evi- 
dently be  dependent  not  only  on  the  character  of  the  collector, 
but  also  upon  the  character  of  the  mercantile  population  and  the 
opportunities  for  smuggling  aflforded  by  the  topography  of  the 


'Doc.  Hist.  I.  701-2.     Col.  Mss.  XLVII.   110. 
'Col.  Laws  I.  116,  170,  248,  287,  325,  419. 


IN    NEW    YORK,     169I-I719.  lOI 

region.  Bellomont  considered  that  he  had  found  a  combination 
of  unfavorable  tendencies  in  all  these  directions  at  once  —  ''the 
Acts  of  Trade  being  no  otherwise  put  in  execution  than  in  the 
voice  of  the  people."  Even  at  the  close  of  an  administration  full 
of  an  active,  and,  on  the  whole,  successful,  crusade  against  viola- 
tions of  all  acts  of  trade,  imperial  and  colonial,  Bellomont  was 
obliged  to  report  that  probably  one-third  of  the  trade  of  the  prov- 
ince was  against  law.  Imperfection  in  the  machinery  of  collec- 
tion was  evidently  a  contributing  feature,  and  even  parliamentary 
interference  for  its  improvement  was  suggested  and  threatened. 
There  seems,  further,  to  have  been  an  actual  decay  in  the  volume 
of  trade,  beginning  with  the  opening  of  the  eighteenth  century. 
Its  causes  were  at  the  time,  variously  ascribed  to  losses  by  war, 
shifting  in  the  habits  of  the  commercial  community  occasioned 
by  Bellomont's  attack  on  the  New  York  system  of  illegal  and 
piratical  trade,  and  the  dissolution  of  the  New  York  City  monop- 
oly of  bolting  flour,  an  important  export  item.  It  may  not  un- 
reasonably be  assumed  that  all  of  the  features,  the  separate  exist- 
ence of  which  is  fully  attested,  combined  to  account  for  the 
decay  in  the  volume  of  trade,  which  seems  to  have  been  unques- 
tioned.^ 

The  excise,  levied  on  liquors  sold  at  retail  within  the  prov- 
ince, was  throughout  the  period,  granted  in  the  same  act  with  the 
customs.  In  proportionate  amount  of  the  whole  revenue  for  the 
period  for  which  figures  are  accessible,  it  averaged  a  little  under 
one-fifth.  The  act  of  1691  abolished  the  distinction  between  New 
York  City  and  the  rest  of  the  province,  previously  existing  in  this 
matter,  and  provided  for  an  excise  on  the  sale  of  distilled  liquors 
in  quantity  under  fifteen  gallons ;  the  same  rate,  viz.,  twelve  pence 
per  gallon,  on  the  sale  of  wine  in  quantity  under  five  gallons, 
and  continued  the  former  rate  of  six  shillings  per  barrel  on  the 
sale  of  beer  or  cider.  The  act  of  1692  abolished  the  distinction 
between  distilled  liquors  and  wines  in  the  matter  of  the  quantity 
constituting  retail  sale,  making  it  five  gallons  for  both.  These 
were  all  the  changes  in  the  rates  of  excise  during  this  period.^ 

The  management  of  this  item  of  the  revenue,  like  that  of 
the  customs,  seems  to  have  been  in  the  hands  of  the  collector 


'Col.   Doc.    IV.   324-5,   417,   590-1,   515-6,   634,   603,   721,   778,    1012, 
1083-4,  1150,  V.  57-9. 

^  Col.  Laws  I.  116,  248,  287. 


I02  PHASES    OF    ROYAL    GOVERNMENT 

and  receiver  general  under  the  more  or  less  active  superintend- 
ence of  the  governor  and  council.  It  was  usually  farmed  by 
counties,  and  the  resulting  opportunities  for  "graft"  were  appar- 
ently improved.  Thus  Bellomont  reports  the  corrupt  dealing  of 
Fletcher's  collector,  Brooke,  in  the  awarding  of  the  contract  for 
Long  Island  for  £52  to  his  friend,  the  sheriff  of  New  York, 
whose  company  was  reported  to  be  making  £500.  Accusations 
of  the  same  nature,  however,  were  made  against  Weaver,  Bello- 
mont's  own  collector,  and  on  the  arrival  of  Cornbury  all  Weaver's 
arrangements  on  this  matter  were  annulled.  Bellomont  thought 
that  the  excise  on  the  province  should  amount  to  £12,000,  and 
was  informed  by  those  who  had  experience  that  it  ought  to  yield 
at  least  £2,000;  but  he  found  difficulty  in  bringing  it  to  i  1,200, 
though  he  estimated  the  population  as  four  times  and  the  num- 
ber of  public  houses  as  ten  times  as  great  as  before  the  Leisler 
episode.  Apparently  the  only  alternatives  to  the  award  of  the 
farming  contracts  to  friends  of  the  collector  were,  award  by  the 
council  itself,  selling  the  contracts  at  auction  to  the  highest  bidder, 
the  process  of  "agreeing  with"  the  public  house  keepers  for  at 
least  the  highest  sum  they  had  ever  before  paid,  and  a  combina- 
tion of  all  these  methods,  varying  the  arrangement  to  suit  the 
peculiarities  of  the  counties.  The  last  method  seems  to  have  been 
that  which  prevailed,  for  the  most  part,  with  what  results  on  the 
productiveness  of  the  excise  as  an  item  of  revenue,  figures  are 
lacking  to  show.^ 

As  these  two  items  together  constituted  the  largest  part  of 
the  revenue  and  were  always,  till  1709,  granted  in  one  act,  the 
circumstances  connected  with  the  passage  of  these  acts  are  of 
some  importance.  The  passage  of  the  act  of  1691  presents  no 
features  of  special  interest  beyond  the  fact  that  the  desire  of  the 
New  York  City  merchants  that  the  importation  of  European 
goods  from  neighboring  colonies  be  restrained  by  a  ten  per  cent, 
duty  was  denied,  such  restraint  being  resolved  by  the  assembly 
to  be  "at  this  juncture  a  grievance  to  the  inhabitants."^  This 
assembly  granted  the  revenue  for  a  period  of  two  years  from  pub- 
lication, viz.,  18  May,  1691.  In  the  autumn  preceding  the  expi- 
ration of  this  revenue,  the  newly  arrived  governor,  Fletcher,  en- 


'Exec.   Council   Minutes  8:39,   105-6,   183-4,   194,  9:49-50,  235.     Col. 
Doc.  IV.  418,  617. 

'Ass.  Journal   I.   16-7. 


IN    NEW    YORK,     169I-I719.  IO3 

deavored  to  make  the  point  of  having  the  revenue  granted  for  the 
Hfe  of  the  sovereign.  The  records  of  this  assembly  are  incom- 
plete, and  those  which  are  accessible  reveal  the  council  demand- 
ing a  grant  for  five  years  instead  of  two.  In  the  conferences  on 
the  subject  the  assembly  defended  itself  against  the  charge  of 
disrespect  or  ingratitude  to  the  crown  by  pleading  the  heavy 
burdens  on  the  province,  particularly  in  consideration  of  the  free- 
dom from  such  burdens  enjoyed  by  their  neighbors.  They  further 
announced  that  they  were  considering  a  new  method  of  support- 
ing the  government,  with  the  hope  of  making  it  more  easy  for  the 
merchant ;  but,  till  the  wished-for  annexation  of  the  neighboring 
colonies,  they  thought  it  best  not  to  discourage  the  merchants  by 
grants  of  the  present  revenue  for  too  long  a  period.  How  seri- 
ously this  announcement  is  to  be  taken  we  have  no  information 
to  shew.  At  all  events,  the  governor  and  council  did  not  push 
the  matter  any  further  and  the  grant  was  made  again  for  two 
years.' 

At  the  next  session  in  the  spring  of  1693,  the  revenue  for 
life  was  again  proposed  in  the  governor's  speech  but  the  house 
took  no  action.  The  same  subject  was  warmly  urged  on  the  newly 
elected  assembly  in  the  fall  of  1693,  and  an  animated  debate  took 
place  in  the  conference.  The  council  urged  the  example  of  Vir- 
ginia and  Maryland  and  the  previous  grant  in  New  York  to 
James  II.,  represented  that  giving  it  for  life  was  no  more  than 
for  a  succession  of  periods  and  suggested  that  the  compliment  to 
the  sovereign  would  enable  the  governor  with  greater  boldness 
to  ask  for  aid  from  home,  and  would  lighten  the  burden  of  the 
militia  detachments  and  taxes  to  support  them.  The  assembly 
in  reply  repeated  the  announcement  made  by  the  previous  assem- 
bly, of  a  design  to  support  the  government  on  a  new  basis,  the 
present  method  being  but  a  makeshift  till  conditions  of  war  should 
be  ended  and  their  neighbours  annexed.  They  protested  that 
they  did  not  intend  to  settle  any  less  sum,  but  to  settle  it  for  life 
would  be  "presidentall,"  and  "would  be  expected  by  the  next 
Successour."  And  despite  the  council's  enthusiastic  laudation  of 
the  customs  and  excise  as  the  "easiest"  method  of  supporting  the 
government,  the  assembly  remained  firm,  and  the  governor  and 
council,  though  with   exceeding  bad  grace,  were  compelled  to 


Ass.  J.  I.  26-28.     Council  J.   I.  30-32,  35. 


I04  PHASES    OF    ROYAL    GOVERNMENT 

submit.  It  may  be  significant  that  it  was  at  this  session  that  the 
act  for  settHng  a  ministry  in  certain  parts  of  the  province,  an 
act  on  which  the  governor  had  set  his  heart,  was  passed.^ 

The  next  grant,  in  1699,  for  a  period  of  six  years  from  1700, 
was  made  by  an  assembly  elected  on  this  issue  of  granting  a 
revenue,  as  it  stood  related  to  the  whole  question  of  the  policy 
of  Bellomont,  the  new  governor.  The  opponents  of  his  policy 
of  enforcement  of  the  imperial  trade  system  had  not  scrupled  to 
use  their  whole  endeavor  to  arouse  popular  prejudice  against  him. 
On  account  of  his  vigorous  attack  on  the  "system"  countenanced 
by  Fletcher,  he  had  not  been  able  to  avoid  the  appearance  of 
patronizing  the  Leislerian  faction.  The  scheme  of  his  oppon- 
ents was  to  get  an  assembly  elected  which  would  refuse  to  con- 
tinue the  revenue  and  thus  involve  the  governor  in  such  disgrace 
at  home  as  would  inevitably  lead  to  his  recall.  On  his  part  the 
governor  did  not  scruple  to  use  executive  patronage  to  procure 
a  "tractable"  assembly,  one  which  would  continue  the  revenue 
for  five  years,  "which  is  what  I  Chieftly  stickle  for."  In  this  he 
was  entirely  successful  and  the  revenue  was  continued  for  six 
years,  this  time  without  effort  on  the  governor's  part  to  secure 
a  grant  for  life.  But  the  governor's  "management"  of  the  as- 
sembly for  this  purpose  also  involved  his  co-operation  in  acts 
of  legislation  which  had  a  decided  bearing  an  partisan  interests. 
Here  is  a  plain  case  of  barter  between  governor  and  assembly, 
with  continuation  of  revenue  legislation  on  the  one  side  and  com- 
plaisance in  partisan  legislation  on  the  other.^ 

The  same  is  true  to  even  greater  degree  of  the  next  grant 
of  revenue,  which  occurred  under  peculiar  circumstances,  four 
years  before  the  expiration  of  the  current  revenue,  i.  e.,  in  1702. 
Bellomont  had  experienced  the  greatest  difficulty  in  restraining 
the  vengeful  passions  of  the  Leislerians,  who,  as  we  have  seen, 
were  willing  to  buy  legislative  measures  of  redress  with  a  longer 
grant  of  revenue  than  had  been  usual.  Nanfan,  the  lieutenant 
governor,  who  succeeded  on  the  death  of  Bellomont,  was  quite 
unable  to  restrain  this  fury ;  and  among  the  acts  rushed  through 
the  assembly  just  before  the  arrival  of  Cornbury  was  one  con- 
tinuing the  revenue  for  two  years  after  1706,  and  at  the  same 
time  requiring  immediate  payment  of  salaries  to  certain  favorites 


'  Ass.  J.  I.  32-3.     Council  J.  I.  43-8. 

'Ass.   J.  92-105.    Col.   Doc.    IV.   327,   379,   507-8,   524,   821. 


IN    NEW    YORK,     169I-I719.  10$ 

of  the  Leislerian  party.  This  latter  feature  was  an  innovation 
in  an  act  granting  the  revenue,  and  was  probably,  as  Cornbury 
reported,  the  reason  for  passing  the  act.  The  whole  legislative 
output  of  this  session  was  subsequently  annulled,  but  Cornbury, 
in  the  first  session  of  the  assembly  elected  after  his  arrival,  ex- 
acted a  real  continuation  of  the  revenue  for  three  years  after 
1706,  in  return  for  legislation  repealing  certain  important  statutes 
of  Bellomont's  time  which  had  frustrated  schemes  of  the  Anti- 
Leislerian  leaders.^  The  point  of  importance  to  be  noted  in  con- 
nection with  all  these  grants  of  revenue  is,  that  in  the  reckless 
excitement  of  factional  conflict  both  parties  for  the  sake  of  cor- 
rupt advantage  put  it  beyond  the  power  of  an  opposition  to  bring 
the  pressure  of  a  denial  of  supply  for  the  ordinary  support  of 
government  to,  bear  upon  the  administration  till  after  1709. 

As  the  customs  and  the  excise  together  constituted  about 
eighty-five  per  cent,  of  the  revenue,  the  remaining  items  were 
comparatively  unimportant  in  point  of  productiveness.  The  only 
one  that  was  dependent  on  the  vote  of  the  assembly  was  that  de- 
rived from  the  "Weigh  house  Duties,"  which  averaged  about 
two  and  one  half  per  cent,  of  the  total  revenue.  This  was  granted 
by  the  assembly  in  1692,  having  been  collected  prior  to  that  time 
by  virtue  of  the  prerogative.  The  assembly  attempted  to  make 
the  grant  for  two  years  only,  but  were  told  by  the  council  that, 
since  it  was  only  out  of  the  condescension  of  the  governor  that 
they  were  allowed  to  ascertain  the  rates,  nothing  less  than  an 
unlimited  grant  could  be  considered.  A  subsequent  request  from 
the  assembly,  that  the  proceeds  from  the  "King's  Beam"  be 
appropriated  to  the  fortifications  of  New  York  City,  "that  the 
imposition  may  be  the  more  willingly  paid  by  the  inhabitants," 
was  ignored.^ 

The  income  derived  from  seizures  and  forfeitures  was  from 
the  nature  of  the  case  variable  —  "casual  and  accidental"  was  the 
term  contemporaneously  employed  in  description.  During  the 
first  eleven  years  after  1691  it  averaged  about  two  and  one-half 
per  cent,  of  the  total  revenue.  During  Cornbury's  administra- 
tion the  collector  would  not  make  any  payments  from  this  source 
of  income  without  special  orders  from  home. 


'  Col.  Laws  I.  487,  517.     Col.  Doc.  IV.  999,  1004. 
'  Col.  Laws  I.  322.     Ass.  J.  L  30.     Council  J.  L  38-9. 


I06  i'llA^ii.S    Of    xiUY.vL    GOVERNMENT 

The  quit  rents  constituted  an  item  which,  from  its  nature, 
might  have  been  supposed  to  be  an  important  feature  of  the  rev- 
enue. The  territorial  revenue  of  the  crown  being  beyond  the 
direct  influence  of  the  assembly  might  have  been  the  nucleus  of  an 
independent  resource.  That  it  was  not  thus  available  in  any  im- 
portant degree  was  due  to  the  negligence  of  some,  and  the  cor- 
rupt activity  of  other  governors.  In  1710  the  attorney  general 
reported  that  by  reason  of  the  small  reservations  of  quit-rents, 
the  non-enrollment  of  patents  or  their  loss  if  made,  the  presence 
of  illegal  features  in  many  of  the  grants  and  the  non-fulfillment 
of  conditions,  the  income  from  "the  greatest  part  of  the  conti- 
nent" would  not  average  iioo  a  year.  Whatever  the  fault  of  the 
early  governors  (and  the  proceedings  of  Fletcher  in  granting 
three-fourths  of  the  province  to  less  than  a  dozen  people  for 
quit  rents  amounting  to  less  than  £5  per  annum  shows  that  this 
w^s  not  inconsiderable),  a  wide-spread  spirit  of  lawlessness  con- 
cerning these  matters  in  the  rural  regions  is  equally  an  element  of 
the  situation.  Bellomont's  opponents,  in  the  election  on  the  rev- 
enue issue  already  referred  to,  placed  great  reliance  on  their  trick 
in  getting  him  to  essay  the  collection  of  the  quit  rents  on  a  whole- 
sale plan  during  the  progress  of  the  campaign.  He  himself  sug- 
gested the  necessity  of  an  act  of  parliament  for  the  regulation  of 
land-granting  in  the  province,  being  sure  that  no  dependence 
could  be  placed  on  the  assembly.  He  estimated  that  at  a  proper 
rate  the  income  from  this  source  should  amount  to  £3000.  Noth- 
ing in  the  line  of  improvement  of  the  situation  was  achieved, 
however,  during  the  currency  of  the  revenue,  though  effort  was 
made  in  this  direction  by  the  council  in  Cornbury's  time,  and 
though  it  was  the  government's  only  available  resource  in  una- 
voidable exigencies.^ 

The  subject  of  fees  was  one  upon  which  there  was  strong 
popular  feeling  and  much  determined  effort  on  the  part  of  the 
assembly.  The  commission  and  instructions  of  the  early  part 
of  the  period  seemed  to  commit  the  regulation  of  them  to  the 
governor  and  council,  although  in  terms  which  did  not  entirely 
exclude  the  possibility  of  participation  by  the  assembly.  The 
subject  had  importance  for  the  question  of  control  of  the  finances 
by  the  popular  body,  because  to  the  degree  that  the  support  of 

'  Col.  Doc.  IV.  419,  519-20,  514,  555,  V.  161-2.     Council  T.  I.  212,  218-9. 


IN    NEW    YORK,     169I-I719.  10/ 

such  officers  was  withdrawn  from  dependence  on  the  legislature 
was  control  of  them  by  that  body  rendered  difficult.  In  their  offi- 
cial expressions,  however,  it  was  always  the  burden  on  the  ordin- 
ary conduct  of  aftairs  which  was  entailed  by  the  extravagant 
charges,  that  was  emphasized.  In  connection  with  the  grants  of 
revenue  prior  to  Cornbury,  tables  or  catalogues  of  fees  were  sent 
up  to  the  council  by  the  assembly.  A  regulation  seems  to  have 
been  provided  by  the  council,  after  the  receipt  of  a  table  from  the 
assembly  in  1693;  but  it  seems  never  to  have  passed  in  regular 
form  as  an  ordinance.  Bellomont  was  of  opinion  that  power  in 
this  matter  was  in  the  hands  of  the  governor  and  council  whose 
action  must  be  especially  approved  by  the  home  government ;  and 
he  so  informed  the  assembly,  who  thereupon  withdrew  their 
table  which  they  had  intended  to  form  part  of  the  revenue  act 
in  1699.  It  does  not  appear  that  any  action  from  home  was 
secured,  and  the  regulation  of  1693  continued  in  form.  The 
general  movement  for  reform  of  financial  method  by  the  as- 
sembly under  Cornbury  included  repeated  attacks  on  the  fee 
system,  which  was  represented  as  a  form  of  taking  away  the 
property  of  the  subject  without  consent  in  general  assembly. 
These  attempts  culminated  in  1709  in  an  act  establishing  fees, 
passed  by  both  houses,  and  assented  to  by  the  lieutenant  gov- 
ernor in  the  fear  of  stirring  up  trouble  with  the  assembly  at  a 
time  when  so  much  was  expected  of  it  in  the  way  of  military 
supplies  for  the  Canada  expedition.  In  his  correspondence  with 
the  home  government  Ingoldsby  hinted  that  reform  in  some  par- 
ticulars would  be  entirely  in  order;  but  that  the  assembly  had 
gone  much  too  far  in  the  other  direction,  reducing  the  fees  so  low 
that  officers  could  not  live.  The  act  was  disallowed  and  the  con- 
tinuance of  this  contest  formed  a  part  of  the  general  revenue 
controversy  under  Hunter.^ 

Levies  of  direct  taxes  comprised  an  item  of  public  income 
which  at  any  rate,  for  the  first  twenty  years,  after  1691,  consid- 
erably exceeded  the  revenue  in  productiveness.  The  purposes  for 
which  these  levies  were  made  were,  in  theory,  the  "extraordinary 
uses"  of  the  province,  as  distinguished  from  the  "ordinary  support 
of  government."     Naturally  then,  they  were  not  necessarily  mat- 


'  Col.  Laws  I.  638.     Ass.  J.  I.  12-13,  17,  28,  30,  223-4.     Council  J.  I. 
32,  132-4.     Col.  Doc.  IV.  287,  V.  82,  603. 


I08  PHASES    OF    ROYAL    GOVERNMENT 

ters  of  annual  or  regular  grant,  but  in  fact,  as  the  acts  levying 
them  were  chiefly  for  purposes  of  defense,  and  as  there  were 
only  four  years  of  formal  peace  during  this  period,  such  acts 
came  to  be  quite  regular  in  their  recurrence  till  the  movement 
for  the  creation  of  the  office  of  the  country  treasurer  began  in 
1703.  During  this  period  there  were  only  two  years  in  which 
an  act  for  the  levy  of  direct  taxes  was  not  passed  by  the  legis- 
lature. By  governors'  administrations,  the  levies  of  direct  taxes 
ran  as  follows : 

Sloughter  and  Ingolds- 

by  i5ooo     Defense 

Fletcher  £20,477  ^  6 :  8     Defense 

ii,ooo     Agency 
£750     Present  to  governor 

Bellomont  and  Nanfan    i  1,000     Defense 

i2,ooo     Present    to    governor    and 

lieutenant-governor. 
ii,ooo     Payment  of  debts 

Cornbury  £8,483 :  10     Defense 

i2,ooo     Present  to  governor 
£143:10:10     Room  for  assembly 
ii,oio     Payment  of  debts 

Practically  all  these  levies  were  of  the  nature  of  a  general 
property  tax ;  that  is,  a  lump  sum  was  granted,  which  was  vari- 
ously called  a  "sum,"  "supply,"  "levy,"  "fund,"  quotas  of  which 
were  by  the  terms  of  the  act  assigned  among  the  several  counties, 
to  be  "levied,  assessed  and  raised  upon  the  inhabitants,  residents 
and  freeholders."  There  was  only  one  instance  of  the  use  of  the 
"penny  in  the  pound  rate,"  viz.  in  1692,  for  a  present  to  Fletcher. 
There  was  one  instance  of  the  use  of  a  poll-tax,  in  1703,  by 
which  nine  pence  was  imposed  on  freemen  of  sixteen  years  and 
over,  three  shillings  on  bachelors  of  twenty-five  years,  five  shil- 
lings and  six  pence  on  persons  wearing  a  periwig,  twenty  shil- 
lings on  practising  lawyers,  twenty  shillings  on  members  of  the 
assembly,  and  forty  shillings  on  members  of  the  council.  With 
these  exceptions  the  levies  were  of  the  nature  indicated.  For 
assessment  and  collection  of  these  taxes,  the  machinery  used 
by  the  counties  for  their  local  rates  was  employed,  and  penalties 
were  provided   for  failure  by  the  justices  of  the  peace  of  the 


IN    NEW    YORK,     169I-I719.  IO9 

counties  or  the  mayors  or  aldermen  oi  the  cities  to  enforce 
the  powers  of  the  act.  Considerable  difficulty  was  experienced 
in  keeping  the  county  officers  to  their  duty,  and  for  the  first  ten 
or  fifteen  years  the  records  of  the  executive  council  contain 
many  instances  of  pressure  from  that  body  on  the  justices. 
Most  of  the  development  in  the  system  was  concerned  with 
strengthening  here  and  there  the  penalties  for  the  non-enforcs- 
ment  of  the  acts.  At  first,  payment  in  produce  was  allowed,  and 
schedules  of  rates  at  which  it  was  to  be  received  formed  part 
of  the  acts.  By  1695,  this  practice  seems  to  have  been  dis- 
continued. A  number  of  the  early  tax  acts  provide  for  taking  up 
a  proportional  part  of  the  sum  to  be  raised  at  interest,  on  the 
credit  of  the  act,  with  special  appropriation  clauses  for  the  repay- 
ment of  the  persons  who  should  thus  advance  ready  money. 
Attempt  was  made  early  in  the  period  to  arrange  for  a  system 
of  commissioners  in  each  county,  to  be  appointed  by  the  as- 
sembly and  commissioned  by  the  governor,  for  estimating  es- 
tates ;  and  an  establishment  for  such  estimation  "to  prevent  un- 
certainties in  the  Proportioning  of  all  Subsidies ;"  was  included  in 
the  plan.  But  the  device  was  rejected  in  council.  Unfortunately 
the  records  of  the  assembly  give  no  information  concerning  any 
debates  over  the  assignment  of  quotas  to  the  counties.  The 
quotas  bear  a  proportionate  relation,  not  strictly  maintained,  to 
the  population   of  the  counties.^ 

It  was  matter  of  complaint  by  the  Anti-Leislerians  that  what 
was  praised  as  public  spirit  in  their  adversaries  in  reality  cost 
them  little,  for  their  whole  number  paid  scarcely  one-fifth  of  the 
public  assessments  and  scarcely  one-fiftieth  of  the  customs  reve- 
nue. During  Fletcher's  administration,  the  taxes  for  defense, — 
and  most  of  them  were  for  that  purpose,  —  omitted  Albany  from 
the  quotas,  in  consideration  of  that  county  furnishing  quarters, 

'  Col.  Laws  I.  239,  258,  272,  282,  315,  344,  352,  354,  358,  3G4,  369,  381. 
Ass-y  J.  I.  36-8. 

In  the  period  1691-1711,  the  quota  of  the  City  and  County  of  N.  Y. 
averaged  roughly  from  20%  to  30%  of  the  total  levy,  beginning  at  the 
lower  figure  during  the  first  two  acts  after  Sloughter's  arrival,  and  hold- 
ing at  nearly  30%  during  Fletcher's  and  Bellomont's  administrations  and 
falling  to  21%  during  the  period  from  1702  to  1711.  The  higher  pro- 
portion corresponds  pretty  closely  with  New  York's  population  if  reck- 
oned by  totals,  the  lower,  if  reckoned  on  the  basis  of  the  number  of 
white  males. 


no  PHASES    OF    ROYAL    GOVERNMENT 

fire  and  candle  for  the  detachments  there  stationed.  This  prac- 
tice was  abandoned  in  the  second  intercolonial  war.  No  convinc- 
ing explanation  appears  at  present  for  several  departures  from 
the  principle  of  population  as  a  basis  for  reckoning  quotas.^ 

In  comparing  the  reliance  placed  upon  the  productiveness  of 
the  revenue  and  upon  the  levies,  as  sources  of  income,  we  are 
embarrassed  by  the  absence  of  figures  for  receipts  of  revenue 
during  the  first  twenty  years  of  the  eighteenth  century.  For  the 
period,  1691-1695,  the  average  revenue  amounted  to  i3,550,  while 
the  taxes  voted  for  the  corresponding  period  averaged  £4,892  per 
annum.  The  figures  for  the  administration  of  Bellomont  and 
Nanfan  seem  to  show  a  disposition  on  the  part  of  the  Leislerians, 
during  their  brief  day  of  power,  to  take  advantage  of  the  greater 
accessibility  of  their  enemies'  mercantile  investments  for  public 
purposes.  Both  the  periods  1698- 1702  and  1721-1728  were  times 
of  formal  peace  upon  the  frontiers ;  yet  in  the  former  period  direct 
taxes  are  in  a  ratio  to  the  revenue  of  one  to  five,  while  in  the 
latter  the  ratio  is  one  to  two.  This  feature  appears  particularly 
in  connection  with  their  use  of  the  additional  duty,  which,  as  a 
nearly  constant  feature  of  the  finance  of  the  early  period,  may 
properly  be  described  here.^ 

Partly  as  a  result  of  loosenesss  in  the  system  of  expenditure, 
partly  as  the  result  of  the  severe  and  long  continued  frontier 
struggles  of  the  first  intercolonial  war,  the  province  was  con- 
tinually running  in  debt.  Aside  from  all  attempts  to  saddle 
upon  the  government,  as  constituted  in  1691,  the  respon- 
sibilities incurred  by  the  government  of  the  Leisler  interregnum, 
the  actual  expenses  of  the  government  continually  exceeded 
its  income.  To  meet  these  ''anticipations  of  the  revenue," —  for 
so  they  were  regarded  —  the  practice  was  begun  as  early  as  1692, 
of  laying  a  duty  upon  the  importation  of  certain  goods,  over  and 
above  the  duties  laid  by  all  other  acts.  The  act  of  November,  1692, 
imposed  an  additional  specific  duty  on  distilled  liquors,  wine  and 
molasses,  an  additional  duty  of  two  per  cent,  on  European  goods, 
and  of  six  per  cent,  in  addition  to  this,  upon  such  goods  when  im- 
ported from  anywhere  but  England,  Wales  and  Berwick.     It  was 


'Council  J.  I.  53.     Col.  Doc.  IV.  621.    Col.  Mss.  XLVII.  110.     Doc. 
Hist.  I.  687-702. 
'  Ibid. 


IN    NEW    YORK^     169I-I719.  Ill 

granted  for  two  years  and  continued  till  1698,  by  successive  acts, 
mainly  for  the  same  purpose,  viz.,  payment  of  public  debts.  In 
1699,  a  schedule  of  additional  duties,  in  which  the  principle  of 
discriminating  between  imports  from  England  or  place  of  manu- 
facture and  elsewhere  is  still  further  carried  out,  was  enacted  for 
two  years.  It  was  during  the  period  of  this  act  that  the  assembly 
grudgingly  co-operated  with  the  governor  in  the  project  of  erect- 
ing a  fort  in  the  Onondaga  country.  To  provide  i  1,000  for  this 
purpose,  for  which  they  had  no  real  enthusiasm,  they  granted  what 
might  be  called  an  additional  additional  duty.  If,  for  the  sake  of 
keeping  in  touch  with  the  governor,  they  must  at  least  appear  to 
assist  him  in  this  object,  it  should  be  in  the  manner  least  burden- 
some to  their  special  following.  B'ellomont  called  it  a  "foolish 
money  bill,"  and  commented  on  the  injurious  efifect  it  would  have 
upon  the  regular  revenue  by  putting  an  excessive  clog  upon  trade. 
But  for  the  sake  of  appearances  before  the  Indians,  he  thought 
best  to  consent  to  it.  It  was,  shortly  afterwards,  repealed,  and 
a  property  tax  was  levied  to  meet  the  cost  of  the  fort.  The  dis- 
position of  the  Leislerian  leaders  to  bear  with  special  weight  on 
the  trading  interest  as  a  source  of  public  income  is  also  displayed 
in  an  act  that  was  passed  on  the  expiration  of  the  additional 
duty  voted  in  1699.  The  varieties  of  imports  newly  taxed  by 
this  schedule  had  a  wide  range,  and  some  at  a  later  period  be- 
came a  permanent  element  in  provincial  finance.  But  the  speedy 
annullment  of  most  of  the  legislation  of  this  assembly  deprives 
this  of  permanent  significance.^ 

New  York  did  not  begin  the  practice  of  issuing  bills  of  credit 
till  1709,  when,  owing  to  the  urgent  necessity  of  military 
supplies  for  the  Canada  Expedition  of  that  year,  such  bills  were 
authorized  to  issue,  under  elaborate  directions  as  to  currency,  re- 
demption and  retirement.  They  were  regarded  as  anticipations 
of  the  proceeds  of  the  taxes,  provision  for  whose  levy  in  at  least 
equal  amount  was  coincidently  made.  The  issue  was  provided 
for  by  act,  not  by  resolve,  and,  during  the  period  now  considered 
seems  not  to  have  been  questioned  at  home.^ 

'  Col.  Laws  312,  325,  331,  342,  403,  444,  467.    Col.  Doc.  IV.  713.    Ass. 
J.  I. 

'  Col.  Laws  I.  666,  669,  689,  693,  695. 


112  PHASES    OF    ROYAL    GOVERNMENT 

In  all  these  different  methods  of  raising  money  for  public 
purposes,  the  assembly,  as  a  matter  of  fact,  took  the  mitiative; 
but  the  claim  of  an  exclusive  power  of  framing  such  legislation, 
leaving  to  the  council  only  the  right  to  accept  or  reject  entire, 
does  not  appear  until  the  general  revolt  against  prerogative  con- 
trol of  expenditure  was  undertaken.  Prior  to  1703,  when  the 
assembly  resolved,  "that  it  is  inconvenient  to  admit  of  amend- 
ments by  the  Council  to  a  money  bill,"  such  amendments  had  re- 
peatedly been  made'  by  the  council,  both  in  the  case  of  grants  of 
the  revenue  and  of  tax  levies.  The  council  was  not  slow  to  resent 
this  assumption,  and  was  entirely  supported  in  its  claim  to  the 
right  of  making  such  amendments,  by  the  Lords  of  Trade.  Nev- 
ertheless, the  struggle  for  the  right  to  appoint  its  treasurer  for 
funds  raised  for  extraordinary  uses,  which  was  the  struggle  in 
which  it  found  this  claim  a  useful  weapon,  resulted  in  a  victory 
for  the  assembly;  and  the  council,  as  a  matter  of  fact,  did  not 
offend  again  till  the  occasion  of  the  controversy  over  the  grant- 
ing the  revenue  in  Hunter's  time.  Undeterred  by  the  previous 
rebuke  of  the  Lords  of  Trade,  the  assembly  persisted  in  its  refusal 
to  consider  council  amendments  to  money  bills.  And  even  in 
the  settlement  of  the  controversy,  which  involved  the  practical 
necessity  of  admitting  council  amendments  to  the  bill  for  paying 
the  debts  of  the  colony,  the  assembly  saved  its  face  by  formally 
resolving  that  this  was  not  a  money  bill !  The  same  course  of 
action,  in  practical  consequence,  was  taken  with  regard  to  con- 
ferences concerning  money  bills. ^ 

As  has  been  indicated,  the  chief  struggle  was  that  over  control 
of  expenditure.  The  commission  required  that  ''all  public  moneys 
.  .  .  raised  by  an  act  .  .  .  be  issued  out  by  Warrant  from 
you  by  and  with  the  advice  and  consent  of  the  Council  and  Dis- 
posed of  by  you  for  the  support  of  the  government  and  not  other- 
wise." The  instructions  required  the  governor  not  to  "suffer  anv 
public  money  to  be  issued  or  disposed  of  other  than  by  Warrant" 
from  himself  by  and  with  advice  and  consent  of  the  council,  and 
also  required  that,  in  all  acts  or  orders  for  levying  money  express 
mention  should  be  made  that  the  same  was  granted  to  the  crown 
for  the  public  uses  of  the  province  and  the  support  of  the  govern- 
ment,  "as  by  the  said   Act  or  Order  shall   be   directed."     The 


'Ass.  J.  I.  189,  202. 


IN    NEW    YORK,     169I-I719.  II3 

governor  was  further  required  to  take  care  that  books  of  ac- 
counts of  receipts  and  payments  of  pubHc  money  in  which  the 
particular  sums  raised  and  disposed  of  should  be  mentioned,  be 
kept  and  transmitted  to  theTreasury  at  home  and  to  the  Board 
of  Trade,  "to  the  end  we  may  be  satisfied  of  the  right  and  due 
application  of  the  Revenue."  The  practical  result  is  plain.  It 
was  evidently  the  intention  that  the  money  should  be  disposed 
of  as  directed  in  general  terms  ]:y  the  money-granting  power; 
provision  was  made  for  satisfying  the  crown  that  this  had  been 
done;  but  it  is  to  be  observed  that  in  case  of  deviation  from 
the  ideal  working  of  the  machinery  of  expenditure,  only 
remedial  action,  and  that  after  the  injury  had  been  accom- 
plished, could  be  taken  by  the  dissatisfied  home  government ;  that, 
considering  the  means  of  communication  and  the  imperfections  of 
the  system  of  imperial  control  generally,  great  harm  might  be 
wrought  to  the  provincial  finances  before  any  remedy  could  be 
applied ;  and  finally,  that  there  was  no  provision  for  the  effective 
satisfaction  of  the  body  which  had  made  the  grant,  that  its  pur- 
poses had  been  regarded.  The  experience  of  the  first  three  ad- 
ministrations immediately  demonstrated  these  possibilities,  and 
they  seem  to  be  partially  recognized  in  the  new  feature  in  Corn- 
bury's  instructions  of  1702,  in  which  it  was  stated  that  "the  as- 
sembly may  nevertheless  be  permitted  from  time  to  time  to  view 
and  exaniine  the  accounts  of  money  .  .  .  disposed  of  by 
virtue  of  lav/s  made  by  them."^ 

Control  of  expenditure  of  money  granted  for  purposes  out- 
side the  range  of  the  usual  necessary  and  constant  charges  of  gov- 
ernment was  the  first  thing  aimed  at  by  the  assembly.  As  we 
have  seen,  the  raising  of  money  for  these  purposes  was  accom- 
plished by  levies  of  direct  taxes ;  and  from  the  very  first  we  find 
the  acts  stating  the  object  of  the  grant  in  general  terms,  some- 
times in  the  title  alone,  sometimes  more  fully  in  the  preamble. 
Usually  both  features  were  present,  and  were  generally  followed 
by  some  such  phrase  as  this,  "and  for  no  other  use  whatsoever,'* 
or,  "and  not  otherwise,"  or  a  provision  that  the  money  granted 
be  "only  appropriated  or  applied  to,"  etc.  The  preamble  was 
likely  to  contain,  besides  a  recital  of  the  facts  setting  forth  the 
reasons  for  the  grant,  a  more  detailed  statement  of  its  object  than 

'Ass.  J.  I.  188.     Col.  Doc.  IV.  266,  284,  884-5. 


114  PHASES    OF    ROYAL    GOVERNMENT 

was  contained  in  the  title.  In  the  case  of  acts  providing  for  pay- 
ing and  maintaining  detachments  of  militia,  or  for  bounty  money 
for  enlistments  to  increase  the  force  of  the  "Independent  Com- 
panies," the  practice  came  to  be  to  state  with  much  minuteness 
the  number  of  men,  the  days  they  were  to  serve,  the  places  where 
they  were  to  be  posted,  etc.,  and  a  pay  establishment  was  included 
in  the  act.  By  1696,  the  differentiation  of  objects  for  which  the 
money  was  granted  and  the  allotment  of  definite  sums  to  each  pur- 
pose had  gone  so  far,  as  practically  to  deprive  the  expending 
power  of  all  discretion.^ 

For  the  assembly  thus  to  manifest  its  intention  was  one  thing ; 
to  enforce  action  in  conformity  with  this  intention  upon  a  power 
beyond  its  direct  control  was  quite  another.  In  the  absence  of  a 
positive  requirement  of  accountability  of  the  expending  power  to 
the  tax-granting  power,  the  latter  could  only  work  indirectly  upon 
the  situation,  by  exacting  what  satisfaction  the  former  could  be 
persuaded  to  grant,  as  a  condition  precedent  to  further  supply. 
This,  in  time  of  public  danger,  would  be  an  awkward  thing  to  do, 
and  in  any  case  would  be  pretty  certain  to  be  associated  with  a 
complete  breach  with  the  governor  and  council.  If  the  governor 
and  council  did  not  choose,  or  were  unable,  to  compel  the  collector 
and  receiver-general  to  give  complete  satisfaction  to  the  assem- 
bly, it  would  depend  upon  the  flagrancy  of  the  proved  departure 
from,  the  assembly's  wishes,  or  upon  the  degree  of  urgency  of 
military  supply,  whether  the  assembly  would  go  so  far  as  actually 
to  deny  further  supplies  till  satisfaction  were  obtained.  One  de- 
vice was  made  use  of  at  an  early  stage  of  proceedings,  viz., 
through  the  agency  of  a  committee  of  accounts,  frequently  much 
hindered  by  the  dilatoriness  of  the  collector,  to  ascertain  a  bal- 
ance from  funds  previously  raised,  by  means  of  objections  to 
items  in  the  collector's  accounts,  and  to  include  this  balance  in  a 
new  bill  for  supply,  thus  diminishing,  by  the  amount  of  the 
balance  found,  the  sum  to  be  raised  by  the  new  bill.  During 
Fletcher's  administration,  obstructions  of  many  kinds  were  placed 
in  the  path  of  this  process,  the  assembly  never  being  given  satis- 
factory access  to  muster-rolls  or  accounts  of  expenditure  of  taxes 
for  military  purposes.       In  enforcing  its  program  the  assembly 


"■  Col.  Laws  I.  239,  258,  272,  282,  315,  344-52,  354,  358,  364,  369,  381. 


IN    NEW    YORK,     169I-I719.  II5 

was  pressed  to  its  weapon  of  last  resort  —  a  denial  of  supply  — 
and,  on  dissolution  and  the  election  of  a  new  assembly,  provision 
for  defence  was  made  on  a  different  basis.^ 

Apparently  in  recognition  of  the  futility  of  attempts  to  control 
expenditure  of  taxes  by  any  such  indirect  process  as  the  foregoing, 
a  further  step  in  advance  was  taken,  when,  in  1700,  the  additional 
additional  duty  was  granted  for  the  erection  of  a  fort  in  the  On- 
ondaga country.  Apparently  with  the  encouragement  of  Bello- 
mont,  managers  named  in  the  act,  were  appointed  on  whose  ad- 
vice the  governor  was  to  issue  warrants  for  the  payment  of  bills 
connected  with  the  fort,  the  collector  and  receiver-general  being 
by  the  act  required  to  'transmit  every  three  months  to  the  man- 
agers, accounts  of  his  receipts  from  the  additonal  duty.^  Other 
acts  passed  by  this  assembly,  while  still  under  Leislerian  influence 
but  without  the  restraining  hand  of  Bellomont,  acts  providing  for 
even  more  rigid  control  of  expenditure  by  representatives  of  the 
tax-granting  power,  are  deprived  of  permanent  significance  by  the 
fact  that  Weaver,  the  collector  for  the  time,  was  a  prominent 
leader  of  the  Leislerian  faction,  for  whose  benefit  these  acts  were 
passed.  According  to  these  acts,  the  collector  was  to  pay  the  pro- 
ceeds of  the  tax  thus  raised  to  persons  to  be  named  by  commis- 
sioners appointed  for  each  county  by  the  assembly.  The  acts 
were  repealed  by  the  Cornbury  government  with  all  speed,  but 
the  significance  of  the  system  provided  for  the  enforcement  of 
the  assembly's  intention  is  important  and  apparent.  In  previous 
acts  for  the  payment  of  the  debts,  the  assembly  had  ascertained 
the  debts  for  itself,  then  had  granted  the  additional  duty  for 
their  payment,  and  finally  had  provided  for  the  progressive 
division  of  the  proceeds  of  the  duty  among  the  claimants,  v/hose 
names  and  acknowledged  accounts  were  stated  in  the  act.  The 
loose  method  of  ascertainment  which  was  provided  in  the  act  of 
1 701  bears  witness  to  the  suspicious  atmosphere  clinging  to  the 
whole  output  of  this  assembly.  The  same  taint  of  extreme  and 
offensive  partisanship  vitiates  the  significance  of  the  revenue  act 
passed  at  this  same  session,  which  provided  for  immediate  pay- 
ment of  allotted  salaries  out  of  the  proceeds  of  the  duties  imposed 


^Ass.  J.  I.  47-53.     Council  J.  I.  67-77. 
'Col.   Laws   I.   367.     Council  J.   I.   146. 


Il6  PHASES    OF    ROYAL    GOVERNMENT 

—  a  Step  beyond  the  boldest  dreams  of  the  past,  and  only  to  be 
resorted  to  again  after  the  province  had  been  through  the  fiery 
trials  of  the  Cornbury  administration/ 

It  was  through  the  developing  activity  of  the  committees  of 
accounts  that  the  suggestion  of  the  next  important  step  was  made. 
These  committees  were  chiefly  active  in  the  attempt  to  ascertain 
the  amount  of  the  public  debt,  and  in  the  rightful  location  of 
claims  of  accounts  to  be  parts  of  this  debt.  Nearly  every  session 
of  the  assembly  saw  a  committee  of  its  own  membership  ap- 
pointed to  inspect  the  accounts  of  the  taxes  and  revenue,  and  to 
arrive  at  a  statement  of  the  debts  of  the  government.  Both 
Fletcher  and  Bellomont  appear  to  have  had  but  slight  regard  for 
the  abilities  of  these  committees  to  make  use  of  accounts  when  they 
got  hold  of  them.  It  was  by  joint  committee  of  council  and  as- 
sembly that  the  information  vs^as  obtained,  which  resulted  in  the 
passage  of  both  acts  for  granting  the  additional  duty  for  payment 
of  debts  in  1692  and  1696.  By  1698,  the  assembly  committee 
found  that  the  original  lists  of  debts  for  which  the  additional 
duty  had  been  granted  had  been  paid;  but,  according  to  Bello- 
mont, the  indebtedness  of  the  province  was  still  great  and  its 
credit  very  low.^  The  activity  of  the  assembly  committee  on  ac- 
counts, whose  members  were  shortly  made  commissioners  of 
accounts  together  with  one  outsider,  the  merchant  Van  Dam,  and 
whose  powers  of  investigation  were  at  the  same  time  made  efl^ec- 
tive,  was  apparently  colored  by  the  ambition  to  find  their  late 
antagonists  sufficiently  in  debt  to  the  government  to  make  resti- 
tution by  them  answer  for  many  claims  and  for  the  expenses  of 
fortifications  which  the  governor  was  pressing  on  the  assembly. 
The  commissioners  found  the  accounts  in  a  scandalous  state  of 
confusion,  the  claims  of  Livingston  and  Schuyler,  against  whom 
their  wrath  seemed  to  be  especially  kindled,  filled  with  objection- 
able items  which  were  not  according  to  the  acts  or  according 
to  any  principle  of  good  management.  But  the  excessive  rigor 
and  severity  pursued  in  relation  to  these  accounts,  and  the  reck- 
lessness with  which  claims  of  their  fellow  partisans  at  the  time 
of  the  Leisler  episode  were  allowed  and  the  leaders  in  their  recent 


'  Col.  Laws  I.  467-79,  479-88. 

"Col.   Doc.   IV.   522,   721.     Ass.   J.    I.   69,   90.     Council  J.   I.  27,   76. 


IN    NEW    YORK,     169I-I719.  117 

time  of  prosperity  were  rewarded,  enveloped  the  whole  subject  of 
provincial  debt-paying  in  an  atmosphere  of  corruption  which 
clung  to  it  throughout  the  whole  period.^  The  commissioners 
of  accounts  appointed  by  the  assembly  called  by  Cornbury  were, 
with  the  exception  of  Van  Dam,  now  a  member  of  council, 
Anti-Leislerians ;  and  they  were  directed  to  inquire  only  into 
the  accounts  from  the  time  of  Bellomont's  arrival.  This  is 
significant  of  the  spirit  of  their  principals ;  but  their  inquiry 
within  these  limits  seems  to  have  been  conducted  with  greater 
efficiency  than  has  been  observable  before.  Their  findings  in- 
cluded discovery  of  negligence  equal  to  that  of  Brooke,  on  the 
part  of  Weaver,  Bellomont's  collector,  while  many  objections  to 
items  of  discharge  in  which  partisan  animus  is  evident,  appear. 
Their  objections,  however,  display  a  continuity  in  principle  with 
objections  made  by  the  Leislerian  commissioners  in  the  matter  of 
the  use  of  the  ordinary  revenue  for  the  support  of  the  "Inde- 
pendent Companies."  The  commissioners  also  severely  criti- 
cised the  deputy  of  the  Auditor-General  of  the  Plantations  for 
passing  accounts  so  full  of  errors.  Particularly  important  is 
their  final  observation:  "This  Board  are  of  Opinion,  That  it 
v^ill  be  very  difficult  to  come  to  the  satisfactory  knowledge  of 
the  Uses  and  distributions  of  the  Revenue  and  public  Sub- 
sidies and  of  the  Debts  of  the  Gov't  (forasmuch  as  the  Charges 
do  take  their  arise  from  the  Council  Board)  not  knowing  that 
there  is  any  Accountant  Established  or  Books  kept  wherein 
the  Accounts  are  fairly  entered  by  way  of  Journal,  as  they 
are  past  in  Council ;  and  the  Collectors  or  Commissioners  of 
the  Customs  take  up  no  more  warrants  than  what  they  pay, 
which  for  the  most  part  bear  only  some  General  Hint  of  the  Use. 
Neither  can  we  know  where  the  Arrears  of  Taxes  are  standing 
out,  nor  have  any  distinct  account  of  the  distribution  of  them, 
some  of  the  Collectors  having  Charged  themselves  in  Gross  with 
all  the  monies  they  receive  and  the  Deputy  Auditor  having  allowed 
the  Discharge  promiscuously:  We  are  therefore  of  opinion  it 
would  be  very  necessary  the  Country  would  appoint  a  Receiver 
for  all  Subsidies  and  Taxes  Except  the  Revenue,  who  should  be 


'Col.  Laws  I.  441,  459,  469,  479.  Col.  Doc.  IV.  Ass.  J.  I.  112-14, 
119-38.  Exec.  Council  Min.  VIII.  204-10,  225,  276,  339,  340.  Col.  Mss. 
XLIV.  81,  156,  276,  XLV.  85. 


Il8  PHASES    OF    ROYAL    GOVERNMENT 

accountable  to  the  Assembly  for  the  Same  and  the  disposition 
thereof,  to  the  uses  for  which  they  are  Granted."^ 

This  report  was  presented  at  the  spring  session  of  1703,  and 
the  suggestion  was  immediately  acted  upon.  In  a  bill  for  raising 
£1,500  towards  the  construction  of  batteries  to  guard  the  Narrows, 
provision  was  made  for  a  treasurer  for  receiving  and  paying  the 
money  which  was  now  intended  to  be  raised.  Being  inforrfied  in 
the  series  of  conferences  which  ensued  upon  the  council's  attempt 
to  amend  the  bill,  that  such  proceeding  was  contrary  to  the  in- 
structions, the  assembly  presented  an  address  to  the  governor, 
desiring  him  to  represent  to  the  queen  its  purpose,  viz.,  the  pre- 
vention of  misapplications  in  the  future,  and  to  desire  an  instruc- 
tion to  himself  to  commissionate  some  fit  person  to  be  treasurer, 
the  same  to  give  sufficient  security  by  freeholders  and  inhabitants, 
for  the  due  execution  of  his  office.^  In  the  meantime,  the  assem- 
bly incorporated  in  the  £1,500  bill  a  clause  reciting  the  abuse  and 
misapplication  of  the  public  money  as  a  matter  of  notoriety,  and 
requiring  the  collector  to  keep  a  separate  account  of  the  money 
received  by  virtue  of  this  act  and  exhibit  the  same  to  the  assem- 
bly when  required.^ 

This  was  the  beginning  of  a  struggle  in  which,  for  the  first 
time,  the  assembly  used  its  whole  power  for  the  attainment 
of  a  truly  political  end  uncomplicated,  or  comparatively  so,  by 
any  partisan  aspects.  In  the  course  of  this  struggle,  an  ac- 
count of  which  in  detail  is  forbidden  by  space  limitations,  the 
assembly  attempted  to  force  the  council  into  a  subordinate  po- 
sition in  the  matter  of  legislation  involving  money-raising,  by 
denying  the  council's  right  to  amend  such  bills,  and  did  not 
hesitate  to  enforce  its  demand,  by  refusing  a  supply  even  at 
the  risk  of  danger  to  the  province  in  time  of  war.  On  retreating 
from  its  original  demand  for  a  treasurer  who  should  be  account- 
able to  itself,  it  revived  the  practice  of  former  times,  by  inserting 
minute  directions  as  to  appropriations  and  ascertainments  of 
of  balances  from  former  supplies,  which  had  not  been  expended 
in  accordance  with  the  directions  of  the  acts.  In  opposition  to 
Combury's    interpretation    of   the    instruction    which    permitted 

'  Col.  Mss.  XLVII.  110. 
"  Ass.  J.  I.  170. 
'Col.  Laws  I.  550. 


IN    NEW    YORK,     169I-I719.  1 19 

them  to  view  the  accounts  as  not  extending  to  their  "meddhng 
with  them,"  they  held  that  the  whole  intent  of  that  instruction 
was    that    the    assembly    might    be    satisfied    that    the    money 
raised  by   them   was  applied   to   the   uses   appointed.      In    reply 
to  the  council's   objection  to  their   device  of  making  a   certifi- 
cate from  the  commanding  officer  a  discharge  to  the  treasurer, 
that  it  was  in  violation  of  the  instruction  forbidding  the  issue  of 
public  money  in  any  other  way  than  by  warrant  from  the  gov- 
ernor and  council,  they  held  that  their  desire  in  this  connection 
was  no  more  than  the  requirement  of  the  approval  of  the  coun- 
cil   to   the    governor's    warrants    for    the    ordinary    support    of 
government.    This  they  described  as  equally  a  kind  of  voucher  for 
the  due  disposition  of  that  money  according  to  the  necessities  of 
the  colony.    Throughout  the  controversy,  they  based  their  policy 
on  the  report  of  the  commissioners  of  accounts,  already  referred 
to,  which  recited  the  impossibility  of  a  certain  knowledge  of  the 
state  of  the  revenue  under  the  existing  system,  and  on  the  fact  of 
misapplications  in  the  past  and  at  the  time,  which  were  being 
progressively  brought  to  light  through  the  agency  of  the  com- 
missioners.     Dissolution   only   brought    upon    the    scene    an    as- 
sembly more  determined  upon  the  original  project.     The  gover- 
nor represented  the  matter  to  the  Lords  of  Trade  as  another  evi- 
dence of  the  spirit  of  independency  everywhere  rife  —  "as  the 
country   increases   they   grow   more    sawcy."      Nevertheless,    in 
1706,  the  Lords  of  Trade  directed  the  governor  to  permit  the 
assembly  "to  name  their  own  Treasurer  when  they  raise  extra- 
ordinary   Supplies   for   particular   Uses,"   to   be   accountable   to 
governor,    council    and    assembly.      Warrants    might    be    issued 
by    the    colonels,    captains    or   other    persons    according    to    the 
direction  of  the  act,  but  the  governor  must  always  be  informed 
of  the  occasion  of  issuing  such  warrants,  and  all  persons  con- 
cerned in  issuing  and  disposing  of  such  money  must  be  made 
accountable  to  the  governor,  council  and  assembly.     The  course 
of  the   assembly  in   pretending  to  the  privileges  of  the   House 
of    Commons    was    definitely    rebuked.      The    money    must    be 
granted   expressly   to    the    crown    "which    need   not   hinder  the 
Assembly  of  New  York  from  appropriating  the  money  so  granted 
to  such  particular  uses  as  are  found  requisite."     This  last  point 
was  a  valuable  feature  of  the  message  for  the  assembly's  pur- 
pose, practically  confirming   its   previous   use  of  the   power   of 


I20  PHASES    OF    ROYAL    GOVERNMENT 

appropriation  and  forming  a  basis  for  the  extension  of  the  usage 
at  a  later  period.^ 

One  dangerous  feature  of  the  situation  had  thus  been  rem- 
edied for  the  future,  and  thereafter  all  acts  levying  taxes  contained 
clauses  providing  for  the  custody  of  the  funds  thus  raised  by  the 
treasurer  appointed  by  the  act.  The  payment  of  such  money  was 
to  be  performed  by  the  treasurer,  either  upon  warrants  addressed 
to  him  by  commissioners  or  managers  named  in  the  act,  which 
also  carefully  limited  the  purposes  for  which  the  warrants  were 
to  be  drawn ;  or  directly  to  persons  named  in  the  act,  whose 
receipts  were  pronounced  a  sufficient  discharge  to  the  treasurer. 
One  part  at  least  of  the  public  income  was  now  under  the  effective 
control  of  the  power  that  had  raised  and  granted  it.  Expenditure 
of  money  raised  for  the  ordinary  support  of  government  was  still 
beyond  control,  and  the  methods  and  consequences  of  preroga- 
tive control  of  this  portion  of  the  public  income  must  now  be 
examined. 

There  w^as  one  circumstance  peculiar  to  the  expenditure  of 
this  portion  of  provincial  income,  viz.,  the  fact  that  certain  items 
were  assigned  or  allotted  by  forces  entirely  outside  the  province. 
The  governor's  salary,  for  example,  was  fixed  by?  a  clause  in 
the  instructions  empowering  him  to  take  to  himself  such  and 
such  a  sum  as  his  salary.  The  collector  and  receiver-general 
was  assigned  his  salary  by  the  Lords  of  the  Treasury  out  of  the 
quit-rents.  Such  manifestations  of  control  over  resources  it 
was  entirely  out  of  the  power  of  the  province  to  prevent  during 
the  continuance  of  a  revenue  already  granted.  Only  when  the 
assembly  had  gotten  a  leverage  by  reason  of  the  expiration  of 
the  revenue  of  1709,  do  we  hear  anything  of  an  opinion  that  her 
Majesty  might  not  allot  salaries  out  of  the  revenue.  The  power 
given  to  the  governor  by  the  commission  and  instructions  to  reg- 
ulate all  salaries  and  fees  might  be  influenced  in  its  effectual 
working  in  the  long  run  by  the  size  of  the  funds  established  by 
the  money-granting  power  at  intervals  for  the  support  of  gov- 
ernment, and  by  the  unwillingness  of  the  assembly  to  regard  an- 
ticipations of  the  revenue,  in  so  far  as  they  were  caused  by  such 
salary-regulation  by  the  governor,  as  truly  public  debts.    But  only 


'J.    I.    157-215   esp.    203,    205-7.     Council   J.    I.    189-245.     Col.    Doc. 
IV.  1121-2,  1145-47,  1156,  1165-66,  1171-2,  1181-5. 


IN    NEW    YORK,     169I-I719.  121 

thus  indirectly  could  the  assembly  do  its  work.  Ordinary  support 
of  government  would  naturally  include,  in  addition  to  salaries 
of  officers,  incidental  expenses  of  government,  and  the  meeting  of 
unexpected  emergencies.  The  latter  in  time  of  war  would  be 
likely  to  be  heavy,  as  would  the  former  during  the  periods  in  which 
the  government  was  especially  active  in  enforcing  its  program 
upon  an  unwilling  people.  Both  of  these  conditions  were  present 
during  the  administrations  of  the  first  four  governors  till  1709, 
but  particularly  so  during  the  period  from  1691  to  1702. 

The  salary  list  varied  considerably  during  the  period,  but  ex- 
hibited a  general  tendency  to  increase.  In  1693  it  amounted  to 
£1,738,  in  1702  to  £2,855,  i"  1704  to  £3,097,  in  1708  to  £3,542. 
The  governor  and  council  had  from  the  first  established  the  rule 
that  warrants  should  be  paid  in  course  following  the  dates  of  issue, 
with  the  exception  that  salary  warrants  should  be  paid  quarterly.^ 
"Contingent  charges  of  government,"  which  it  is  impossible  to 
estimate  or  report  in  even  approximate  figures,  including  such 
items  as  expresses  on  Indian  diplomatic  service,  the  cost  of 
maintaining  good  relations  with  the  Indians  in  general,  expenses 
of  legislative  sessions,  and  the  like,  constituted  an  important 
item  in  the  support  of  the  government.  The  presence  of  troops 
in  the  king's  pay  also  involved  a  burden  on  the  revenue,  for, 
owing  to  the  high  prices  prevailing  in  America,  their  pay, 
even  when  transmitted  at  sterling  value,  was  not  sufficient  to 
defray  their  "incidents"  in  addition  to  their  subsistence.  These 
"incidents,"  together  with  support  of  staff  officers,  and  main- 
tenance of  barracks  and  fortifications  were  supposed  to  be  pro- 
vided for  by  the  stoppage  of  ten  per  cent,  from  the  pay;  but 
for  the  reasons  indicated,  the  provision  was  utterly  inadequate 
even  for  one  of  the  objects.  It  is  to  be  observed  that  these 
items  are  of  comparatively  regular  recurrence,  even  though 
difficult  to  calculate  in  amount.  Add  to  these  items  those  con- 
nected with  sudden  and  unavoidable  emergencies,  to  be  expected 
in  time  of  war;  and  the  necessity  for  an  intelligent  system,  and 
scrupulous  adherence  to  at  least  the  outline  of  such  system  be- 
comes apparent.  The  commission  and  instructions  placed  in  the 
hands  of  the  governor  and  council  exclusively,  the  issuing  of  war- 

'Doc.  Hist.  I.  313.  Ass.  J.  I.  243.  Col.  Mss.  XLIX.  142.  Exec. 
Council  Min.  VI.  139. 


122  PHASES    OF    ROYAL    GOVERNMENT 

rants  upon  the  collector  and  receiver-general  for  payment  of  all 
monies  raised  for  the  ordinary  support  of  government.  The  actual 
conduct  of  the  matter  is  perhaps  best  portrayed  by  George  Clarke, 
secretary  of  the  province,   deputy  to,  and  kinsman  of,   Blaith- 
waite,  the  auditor-general,  in  a  letter  written  in  1706,  after  three 
years  of  residence  in  the  province  had  familiarized  him  with  the 
conditions.    "The  Governor  being  judge  of  whatever  is  necessary 
to  be  done  for  Her  Majesty's  service  in  the  province  whenever 
he  thinks  it  convenient  directs  the  performance  thereof  accord- 
ingly.   The  service  completed,  the  persons  employed  or  furnishing 
materials  bring  in  accounts  to  the  Governor  and  Council.    Where- 
upon a  committee  of  three  at  least  is  appointed  to  examine  the 
accounts  and  they  report  according  to  the  nature  and  circum- 
stance of  the  affair,  'though  Generally  and  indeed  almost  always 
the  Substance  of  their  Report  is  that  they  have  Examined  the 
account  and  believe  it  to  be  true  and  are  of  opinion  that  his  Ex- 
cellency may  safely  Issue  Warrants  for  payment  of  the  same  out 
of  the  Revenue.'     The  preparatory  steps  being  taken  the  Gov- 
ernor in  Council  Issues  his  Warrant  (under)  his  hand  and  Scale 
to  the  Receiver-Generall     ...     In  obedience  to  these  warrants 
the  Receiver-General  pays  the  sums  for  which  they  are  drawn 
so  farr  as  the  Revenue  will  Extend   (after  the  Sallarys  of  the 
Governor  and  other  officers  are  paid  these  being  by  order  of  the 
Governor  and  Council  made  preferrable  to  all  payments)    yett 
sometimes  and  indeed  frequently  Sallary  warrants  are  not  paid 
when  others  are,  and  at  other  times  The  Receiver-General  makes 
distinctions  of  persons  when  their  warrants  make  none.     .     .     . 
Hereupon  arise  this  Generall  observation  That  there  seems  to  be 
Little  or  no  hopes  of  having  the  Revenue  applied  to  the  necessary 
uses  only  for  which  it  was  Intended  For  the  10  per  cent,  falling 
Short  (as  I  am  informed)  of  what  is  Sufficient  to  pay  the  Staff 
officers,  consequently  the  Incidents  of  fire  Candles,  Nursing  Sick 
Soldiers  etc.  being  unavoidable  and  what  the  Garrisons  cannot 
Subsist  without  these  Expenses  must  be  paid  out  of  another  fund 
and  there  being  no  other  but  the  Revenue  and  the  Governor  hav- 
ing the  disposall  thereof  in  the  manner  aforesaid  he  orders  the 
payments  thereout  of  those  and  all  other  expences  by  Warrants  as 
aforesaid  to  the  Receiver  General."^ 


'  Col.  Mss.  LI.  170. 


IN    NEW    YORK,    169I-I719.  I23 

The  partiality  in  the  recognition  of  claims  upon  the  govern- 
ment, thus  indicated,  is  one  of  the  many  features  of  the  system  of 
exclusive  control  of  expenditure  for  support  of  government  by 
governor  and  council  which,  in  the  first  eleven  years  of  the  period, 
had  excited  a  deep-rooted  distrust  on  the  part  of  the  people,  and 
which  went  under  the  general  label  of  "mismanagement"  or  "mis- 
applications." This  "mismanagement"  is  exceedingly  difficult 
to  analyze  and  to  account  for  in  any  systematic  way.  Only  a  few 
features,  samples  as  it  were,  can  be  given.  Perhaps  its  most  seri- 
ous feature  was  the  heavy  accumulation  of  indebtedness  actually 
incurred  under  the  operation  of  the  system,  which,  with  the  par- 
tiality in  the  treatment  of  creditors  above  indicated,  would  be 
enough  to  ruin  the  government's  credit.  That  the  latter  result 
was  accomplished,  there  is  abundant  evidence  to  show.  Estimates 
of  the  amount  of  indebtedness  at  different  times  are  necessarily 
vague,  and  the  reasons  assigned  for  its  existence  conflicting. 
Colonel  Quary  reported,  in  1703,  that  at  the  end  of  Fletcher's 
administration,  the  debt  of  the  provice  was  no  more  than  could 
be  discharged  by  the  arrears  of  revenue  and  taxes.  Bellomont 
reported,  in  1699,  that  the  debt  amounted  to  i5,ooo;  while,  in 
1702,  at  the  beginning  of  Cornbury's  administration  it  was  re- 
ported at  i  10,000,  and  ascribed  to  mismanagement  in  Bellomont's 
time.  Livingston  reported,  in  1707,  that  ten  years'  revenue,  if 
settled,  would  not  clear  the  debts.  The  two  acts  in  Hunter's 
time  for  payment  of  debts  recognized  an  indebtedness  amount- 
ing to  over  i42,ooo,  but  a  respectable  fraction  of  this  was 
for  debts  incurred  subsequent  to  the  expiration  of  the  revenue  in 
1709.    In  any  case  the  seriousness  of  the  burden  is  manifest.^ 

The  objections  of  the  deputy  auditor  general  to  the  collec- 
tor's accounts  in  Cornbury's  administration  shows  that  another 
feature  of  mismanagement  was  profuse  extravagance  in  provid- 
ing for  certain  objects,  which  were  entirely  legitimate  in  them- 
selves. One  of  the  most  notorious  of  these  instances  of  extrava- 
gance was  Cornbury's  first  journey  to  Albany  to  meet  the  Indians. 
The  trip  cost  more  than  twice  as  much  as  any  previous  one,  and 
the  excess  can  not  be  charged  to  unusual  liberality  in  regard 
to  the  presents  to  the  Indians.  Another  illustration  is  to  be 
found  in  the  extravagant  expenditure  for  candles,  and  for  many 

'Col.  Doc.   IV.  513,  829.     Cal.   Treas-y   Papers  Vol.   1702-7,  511-12. 


124  PHASES    OF    ROYAL    GOVERNMENT 

Other  items  which  should  have  gone  to  the  governor's  house- 
hold account.  From  the  same  source  we  learn  of  the  greatest 
carelessness  in  using  the  revenue  for  purposes  for  which  the 
pay  of  the  "Independent  Companies"  was  established.  Laxness 
in  control  of  subordinate  officers  by  the  governor  was  another 
feature  of  mismanagemnt.  The  charging  to  the  revenue  of  a 
double  salary,  one  to  the  commissioner  for  executing  the  office 
of  collector  during  the  time  of  Byerley's  suspension,  and  one  to 
Byerley  himself  for  the  same  period,  a  result  which  was  made 
necessary  by  the  disapproval  at  home  of  Byerley's  suspension,  still 
further  swelled  the  burden  of  debt.  Another  feature  which  con- 
tributed to  mismanagement  was  the  uncertainty  in  regard  to  the 
state  of  the  revenue  at  any  given  time.  The  frequent  changes  in 
personnel  in  the  office  of  collector,  with  the  disputes  and  obstruc- 
tions concerning  the  settlement  of  accounts  on  each  transfer,  and 
animosity  existing  between  Cornbury  and  Byerley  and  extend- 
ing through  nearly  the  whole  of  the  former's  administration 
made  it  practically  impossible  that  the  authentic  information 
should  be  attained,  had  there  been  any  determined  official  dispo- 
sition to  make  such  information  accessible.^  The  same  uncer- 
tainty, it  will  be  observed,  had  already  been  noted  by  the  com- 
missioner of  accounts  in  the  matter  of  the  state  of  the  taxes. 

The  letters  of  the  executive  council  during  the  latter  part  of 
Cornbury's  administration  are  full  of  quarrelsome  charges  and 
recriminations  on  the  part  of  all  officers  who  had  to  do  with  ex- 
penditure as  well  as  complaints  of  the  various  claimants  on  the 
public  purse.  Out  of  all  the  tangled  swirl  a  few  chief  currents 
or  eddies  seem  to  be  distinguishable  —  the  dissipation  of  public 
funds  by  profuse  expenditure  for  the  governor's  personal  ends; 
the  activity  of  Fauconnier,  who  was  naval  officer  and  com- 
missioner for  executing  the  office  of  collector  whenever  Byerley 
was  under  suspension,  as  chief  manager  of  Cornbury's  schemes ; 
the  opposition  of  Byerley  to  these  schemes,  many  of  which  were 
for  the  purpose  of  assisting  those  to  whom  Cornbury  was  under 
corrupt  obligation  ;  the  helplessness  or  indifference  of  the  coun- 
cil in  making  its  function  of  advice  to  the  governor  in  the  matter 
of  warrant-issue  effective  in  checking  such  practices ;    the  con- 


'  Col.  Mss.  LII.  24,  26,  81.     Exec.  Council  Min.  X.  120.     Cal.  Treas-y 
Papers  vol.  1702-7 :535.     Col.  Doc.  V.  405,  408. 


IN    NEW    YORK,     169I-I719.  I25 

sequently  difficult  position  of  Clarke,  the  deputy  auditor  general, 
who  objected  to  the  proceedings  of  both  parties;  and  the  atti- 
tude of  the  assembly,  which  was  becoming  more  and  more  dis- 
gusted with  the  working  of  the  system  as  developed  by  Corn- 
bury.^ 

The  excessively  bad  reputation  of  the  Cornbury  administra- 
tion, as  that  of  a  plundering  pro-consul,  seems  partly  to  be  ac- 
counted for  by  the  man's  low  personal  character,  partly  by  the 
impudently  open  use  of  certain  public  monies  for  ends  of 
purely  personal  gratification,  and  partly  by  the  unusual  opportuni- 
ties presented  to  a  governor  of  such  a  character.  For  the  first 
time  in  the  history  of  the  province  we  have  the  combination  of  a 
governor  using  his  power  with  a  faction  largely  for  personal  ends, 
and  a  collector  at  odds  with  the  governor  in  the  latter's  devices  for 
exploiting  provincial  resources  and  for  saving  his  subordinates 
and  accomplices,  and  using  the  due  execution  of  his  office  as  his 
protection  against  compliance  with  the  governor's  irregular 
courses.  Under  these  circumstances,  whatever  injury  was  inflicted 
on  the  provincial  finances  would  be  peculiarly  exasperating;  and 
the  fact  that  after  at  least  eighteen  months'  confinement  in  New 
York,  Cornbury  was  only  able  to  get  away  from  his  creditors  by 
the  good  nature  of  Hunter,  would  seem  to  indicate  that,  however 
great  his  "pickings,"  they  had  not  permanently  bettered  his  for- 
tune very  much.  Complaints  of  the  bad  possibilities  of  the  system 
of  prerogative  expenditure  and  of  the  partial  exploitation  of  these 
possibilities  had  been  made  with  reference  to  Bellomont's  admin- 
istration, but  without  slur  on  Bellomont's  personal  reputation.  It 
was  Cornbury's  peculiarly  sordid  use  of  the  opportunity  that 
earned  for  his  administration  the  especial  degree  of  obloquy  which 
is  associated  with  it.  The  fact  that  Byerley,  though  not  himself 
entirely  free  from  irregularities,  was  able  to  work  harmoniously 
with  Hunter  inclines  one  to  the  view  that  in  his  controversies 
with  Cornbury,  it  was  Byerley's  that  was,  comparatively  speak- 
ing, official  righteousness.  Specific  instances  of  Cornbury's  em- 
bezzlements of  public  money  given  for  public  uses  are,  in  the  pres- 
ent state  of  the  records,  well-nigh  impossible  to  prove.  Colden 
refers  to  his  applying  the  proceeds  of  the  i  1,500  tax  designed  for 


'  Col.  Mss.  LII.  87.     Gal.  Treas-y  Papers  vol.  1702-7  :557.     Ass.  J.  L 
224,  236-8. 


i 

I 

126  PHASES    OF    ROYAL    GOVERNMENT 

the  fortification  of  the  Narrows,  to  the  erection  of  a  pleasure- 
house  on  Nutten's,  now  Governor's,  Island,  as  though  it  were  mat- 
ter of  common  knowledge.  Cornbury  himself  referred  to  these 
rumors  in  his  speech  to  the  assembly  in  its  session  of  1706,  and, 
declaring  that  the  tax  had  not  been  collected,  asked  for  an  inves-i 
tigation.  He  complained  at  the  end  of  the  session  of  their  lack' 
of  thoroughness  in  this  investigation,  the  results  of  which  seemed- 
to  be  the  finding  that  only  £356:6:5^  had  been  collected.  In 
connection  with  the  £  1,800  voted  for  defense  in  the  same  year 
with  the  £1,500,  the  assembly  found  that  £793:6:  of  the  ii,8oo 
were  in  the  hands  of  the  commissioners  for  executing  the  office 
of  collector,  not  applied  to  the  uses  intended  by  the  act.^ 

The  inadequacy  for  such  a  situation,  of  the  check  upon  gov- 
ernmental expenditure  supposed  to  be  exerted  by  the  presence  of 
a  deputy  of  the  auditor-general  and  the  transmission  of  the  col- 
lector's accounts  to  the  Lords  of  the  Treasury,  is  plainly  pointed 
out  by  Clarke  in  the  letter  from  which  quotation  has  already  been 
made.  The  respective  duties  of  the  governor  and  council  and 
of  the  deputy  auditor  in  relation  to  the  collector's  accounts  seem 
to  have  been  practically  undetermined  at  this  time.  The  collec- 
tor's accounts  were  supposed  to  be  examined  and  approved  by  the 
council  after  having  been  sworn  to  by  the  collector.  Byerley, 
however,  held  that  if  the  deputy  auditor  allowed  his  accounts, 
that  was  sufficient,  and  examination  by  the  governor  and  council 
was  not  necessary.  This  was,  however,  only  when  it  was  the  gov- 
ernor and  council  that  he  was  disputing  with.  Clarke  thus  repre- 
sents the  practical  difficulties  of  the  situation  to  his  principal,  the 
auditor-general.  "And  allowing  that  the  Receiver-General  (as 
he  alledges  it  to  be)  is  by  his  Instructions  Sufficiently  discharged 
by  Warrants  past  by  the  Governor  in  the  manner  above  said  he 
may  notwithstanding  your  observations  or  objections  pay  what 
warrants  he  pleases  because  they  are  his  discharge ;  and  indeed  he 
does  accordingly  for  he  pays  warants  of  the  like  nature  with  those 
you  have  objected  to  and  gives  what  I  have  just  said  for  his 
Reason  though  nobody  will  persuade  me  he  does  it  without  a  Con- 
sideration. ...  To  prevent  future  misapplications  'twould 
be  very  proper  I  should  think  to  send  hither  orders  in  Relation  to 
the  applying  and  Issuing  the  Revenue,  or  Else  the  money  must  be 


N.  Y.  Hist.  Soc.  Colls.  1868,  204.    Ass.  J.  I.  208-212,  227. 


IN    NEW    YORK,     169I-I719.  I27 

appropriated  from  home  (vizt.)  so  much  for  firewood  and  so  on 
with  all  the  particular  Expenses :  But  if  the  latter  be  not  thought 
proper  'twill  be  very  necessary  that  a  way  be  found  to  Submitt 
all  accounts  (before  the  Governor's  Warrant  Issues  for  payment 
of  the  Sume)  to  the  Auditor  Generall  or  his  Deputy  and  that  no 
more  nor  other  Expences  should  be  allowed  than  what  he  thinks 
reasonable  and  herein  the  Deputy  Auditor  should  be  fully  and  par- 
ticularly instructed,  that  he  may  not  be  in  the  Dark  nor  do  what 
may  not  be  approved  of  at  home  afterwards.  For  as  it  is  now 
he  can  only  allow  or  disallow  of  Warrants  after  they  are  paid 
and  that  the  Receiver  Generall  does  not  in  the  least  regard  but 
says  the  very  warrants  he  pays  are  Sufficient  discharges  to  him 
for  so  much.  Though  this  (is)  proposed  as  the  properest  method 
I  can  think  of  at  present  yett  I  hope  a  better  way  may  be  found : 
for  by  this  there  is  vast  trouble  like  to  attend  the  Deputy  Auditor 
in  the  Examination  and  allowance  of  all  accounts  which  before 
was  done  by  a  Committee  of  Council  (who  'tis  true  favor  their 
friends  and  are  themselves  often  concerned)  and  besides  this 
Great  trouble  the  Deputy  Auditor  will  be  continually  Subjected 
to  the  frowns  and  resentment  of  the  Governor  to  whom  there  will 
be  constant  applications  and  thereupon  Commands  or  orders  which 
may  bring  the  Deputy-Auditor  under  this  Dilemma  either  that 
he  must  disobey  the  Governor  or  betray  the  Trust  reposed  in 
him."^  Comment  on  the  foregoing  as  a  revelation  of  conditions 
prevailing  in  Cornbury's  time  is  hardly  necessary.  The  difficul- 
ties, thus  described,  disappeared  with  a  change  of  personnel  in 
the  governor's  office. 

The  net  result  of  this  whole  period  would  appear  to  be  about 
as  follows :  during  the  first  eleven  years,  the  assembly  was  find- 
ing itself,  as  it  were,  and  acquiring  experience.  The  conditions 
of  the  financial  problem  were  in  the  mean  time  accumulating, 
and  that,  at  a  time  when  public  attention  was  occupied  with  a 
partisan  conflict  under  Sloughter,  Fletcher  and  Bellomont,  and 
with  the  results  which  might  follow  the  enforcement  of  the  im- 
perial trade  system  under  Bellomont.  From  the  beginning  of 
Cornbury's  administration,  after  experience  had  been  gained 
under  the  domination  of  each  of  the  local  factions  in  turn,  a  move- 
ment begins  to  be  visible  amid  the  dust  of  partisan  strife,  working 


Col.  Mss.  LI.  170. 


128  PHASES    OF    ROYAL    GOVERNMENT 

in  the  direction  of  practical  control  over  the  expenditure  of  at 
least  one  element  of  provincial  income.  After  success  had  been 
attained  in  this  direction,  however,  by  the  winning  of  the  right 
to  appoint  a  Country  Treasurer,  the  expenditure  of  money  raised 
for  support  of  government  was  still  beyond  the  control  of  any 
element  which  effectively  represented  popular  interest.  Effective 
action  on  this  point  could  only  become  possible  when  the  expira- 
tion of  the  revenue  act  in  1709  should  once  more  give  the  assem- 
bly leverage.  The  exhibition,  to  greater  and  more  exasperating 
degree,  of  the  working  of  the  prerogative  system  of  expendi- 
ture, together  with  the  decreasing  volume  of  trade  already  noted, 
was  establishing  more  firmly  every  day  the  well  grounded  objec- 
tion to  the  whole  system  by  which  the  government  was  supported. 
This  opposition  found  adequate,  but  under  the  circumstances 
alarming,  expression,  in  the  resolve  of  the  assembly  of  the  elev- 
enth of  September,  1708  —  ''That  the  raising  of  any  Monies, 
for  the  Support  of  Government  or  other  necessary  Charge, 
by  any  Tax,  Impost  or  Burthen  on  Goods  imported  or  ex- 
ported, or  any  clog  or  Hindrance  on  Traffick  or  Commerce, 
is  found  by  sad  Experience,  to  be  the  Expulsion  of  many  and 
the  Impoverishing  of  the  rest  of  the  Planters,  Freeholders  and 
Inhabitants  of  this  Colony,  of  most  pernicious  consequence, 
which  if  continued  will  unavoidably  prove  the  Destruction  of 
the  Colony." 


CHAPTER  V.     THE  REVExNUE  CONTROVERSY, 
1709-1717. 

The  dispute  over  the  method  of  supporting  the  government 
constituted  the  main  action  of  the  period,  1 709-1 717.  The  con- 
troversy itself  is  only  to  be  understood  in  the  long  perspective 
of  the  period  described  in  the  preceding  chapter,  as  well  as  in  the 
light  of  the  period  between  the  administrations  of  Cornbury  and 
Hunter. 

The  resolve  quoted  at  the  close  of  the  last  chapter  indicates 
the  general  character  of  the  assembly's  sentiments  concerning 
the  working  of  the  revenue  system  in  the  past.  The  general  con- 
dition of  the  province  and  the  plans  of  the  opponents  of  a  con- 
tinuation of  the  former  system  are  set  forth  in  the  communica- 
tions of  prominent  residents  and  officials.  Livingston  and  Morris 
agreed  in  reviling  the  Cornbury  administration,  the  latter  liken- 
ing it  to  that  of  Gessius  Florus  in  Judaea.  Livingston  described 
the  province  as  appearing  to  be  ''under  a  visible  judgment  .  .  . 
since  this  gent,  came  among  us  .  .  .  trade  decayed,  house  rent 
fell  .  .  .  everything  behindhand," — "a  poor  dispirited  people,  a 
mixture  of  English  French  and  Dutch  ...  if  never  so  much 
oppressed  dared  not  complain  because  they  were  not  unanimous 
and  did  not  stick  to  one  another.  So  that  if  a  governor  were 
not  a  man  of  honor  and  probity  he  could  oppress  the  people  when 
he  pleased.  He  had  but  to  strike  in  with  one  party  and  they 
assisted  him  to  destroy  the  other."  The  province  was  evidently 
not  prosperous  and  many  of  its  inhabitants  were  in  bad  temper. 
As  to  the  intentions  of  the  assembly  in  regard  to  the  revenue, 
Colonel  Quary  describes  the  intention  never  to  renew  it  as  ''the 
discourse  in  every  man's  mouth,  but  some  of  the  most  consider- 
ing men  say  that  perhaps  they  will  give  money  for  the  support 
of  government  but  it  shall  be  only  from  year  to  year  and  disposed 
of  as  they  think  fit,  so  that  the  governor  and  all  the  officers  shall 
depend  on  them  for  bread. "^ 

The  conduct  of  the  assembly  itself,  as  soon  as,  under  ordinary 
circumstances,   action   for  a  continuance  of  the  revenue  would 


'  Col.  Doc.  V.  19,  37.     Cal.  Treas-y  Papers,  Vol.  1708-14,  pp.  511-13. 
9  (129) 


130  PHASES    OF    ROYAL    GOVERNMENT 

have  been  in  order,  certainly  bears  out  much  of  this  descrip- 
tion. Since  the  assembly  had  received  permission  to  name  their 
own  treasurer,  they  had  raised  no  funds  except  for  extraordinary 
uses,  and  these  acts  had  contained  extremely  detailed  appropria- 
tions.^ When  action  in  the  direction  of  continuing  the  excise, 
which  seems  to  have  been  taken  as  a  matter  of  course,  became 
necessary,  the  disposition  of  the  assembly  toward  innovation  upon 
former  methods  became  evident.  The  same  rates  were  continued 
but  they  were  granted  only  for  one  year.  Practically  the  same 
system  of  management  was  employed,  but  now  the  system  was 
established  by  law,  and  the  mayors  and  aldermen  and  the  justices 
of  the  peace  were  made  the  assembly's  agents  in  the  matter ;  and 
the  country  treasurer  was  designated  as  the  receiver  of  the  pro- 
ceeds, instead  of  the  collector  and  receiver-general.  "In  the  same 
act,  notice  was  taken  of  the  fact  that,  though  the  weighhouse 
duties  had  been  granted  to  King  William  and  Queen  Mary,  never- 
theless, since  the  demise  of  the  crown  these  duties  had  been  col- 
lected without  grant.  It  was  now  formally  provided  that  the 
duties  should  be  paid  to  the  treasurer  instead  of  to  the  collector 
and  receiver  general,  and  the  latter  official  was  furthermore  re- 
quired to  account  with  the  treasurer  for  what  he  had  received 
on  that  account.  It  was  provided  also  that  the  treasurer  should 
pay  out  the  money  raised  by  this  act,  "in  Such  Manner  and  to 
Such  uses  only  as  by  Act  of  General  Assembly  hereafter  to  be 
made  for  that  purpose,  shall  be  Limitted  appointed  and  Expressed 
and  not  otherwise."^ 

The  necessity  of  supporting  the  government  in  the  manner 
usual  in  the  past,  as  well  as  the  restoration  of  the  government's 
credit  by  the  ascertainment  and  settlement  of  the  numerous  pul)- 
lic  debts,  had  been  urged  on  this  assembly  by  Lovelace,  the  new 
governor.  The  assembly  replied  with  chill  politeness  that  it  was 
their  desire  that  people  should  be  attracted  hither  and  then  kept 
here,  and  that  the  contrast  between  the  "wrong  Methods  too  long 
taken  and  the  Severities  practiced  here"  and  the  conditions  in  the 
neighboring  colonies  had  kept  people  away.  They  then  called 
for  the  accounts  of  the  revenue,  the  salary  list  and  the  claims  upon 
the  government;  and  on  the  day  of  Lovelace's  death,  5  May,  1709,* 
had  resolved  to  raise  £2,500,  of  which  £1,600  was  to  be  paid  to 

'Col.  Laws  I.  593,  598,  628,  062. 


IN    NEW    YORK,     169I-I719.  I3I 

the  governor  and  the  rest  for  "incidents"  of  the  garrisons  and 
small  salaries  for  a  few  of  the  officers.^  Almost  immediately 
after  Lovelace's  death  came  the  news  of  the  intended  expedition 
against  Canada,  and  in  the  rush  of  preparation  for  this  enter- 
prise, the  assembly  got  no  further  in  support  of  government 
than  the  passage  of  the  excise  act  already  referred  to ;  and  this 
as  was  observed,  made  no  provision  for  payment  of  any  of  the 
expenses  of  government.  Resolves,  however,  were  passed,  look- 
ing to  the  provision  of  a  tonnage  duty,  a  duty  on  importation  of 
slaves,  a  chimney  tax  and  a  poll  tax  on  slaves  in  the  colony,  and 
to  payments  to  Lady  Lovelace,  the  lieutenant  governor  and  the 
chief  justice.  At  the  autumn  session  in  1709,  these  resolves 
found  expression  in  legislation,  the  payment  of  the  "allowances" 
referred  to,  except  that  for  Lady  Lovelace,  being  provided  for  in 
a  separate  "Act  for  the  Treasurer's  paying  certain  sums  of 
money."  Items  relating  to  the  maintenance  of  the  "Independent 
Companies,"  such  as  had  previously  formed  part  of  the  ordinary 
expenses  of  government,  together  with  a  few  small  salaries,  prin- 
cipally those  of  legislative  officers,  were  also  provided  for  in 
another  separate  appropriation  bill.  At  the  spring  session  they 
had  taken  the  opportunity  to  embody  their  long-cherished  ideas 
concerning  fees  in  a  bill,  which,  for  reasons  of  the  moment,  was 
allowed  to  be  passed  into  an  act.-  Thus  they  were  showing  them- 
selves true  to  the  intentions  ascribed  to  them  at  the  close  of  the 
Cornbury  administration,  tliough  as  yet  on  a  small  scale  and 
under  {:»€culiar  circumstances.  The  Canada  expedition,  now  on 
foot,  though  it  was  made  as  attractive  as  possible  by  the  imperial 
authorities,  and  though  it  met  with  enthusiastically  responsive  sen- 
timents in  the  province,  required  very  considerable  exertions  in 
the  way  of  financial  and  military  support.  Even  in  reference  to 
matters  that  were  not  deemed  important  for  the  expedition  by 
the  council,  that  body  showed  itself  anxious  to  avoid  exasperat- 
ing the  assembly;  and  objections  which  under  other  circum- 
stances would  undoubtedly  have  been  insisted  on,  were  yielded, 
among  them,  these  innovations  in  the  matter  of  the  ordinary  sup- 
port of  government.^ 


'Ass.  Journal  I.  240,  242,  246. 

'  Ass.  J.  I.  253-6.     Col.  Laws  I.  675,  682,  684,  698,  638. 
'  Ass.  J.  I.  252-3,  267.     Col.  Laws  I.  654,  669,  693,  698,  675,  682,  684. 
Col.  Doc.  V.  82-3.     Smith,  194-5. 


132  PHASES    OF    ROYAL    GOVERNMENT 

The  acts  which  provided  money  by  direct  taxation  for  the  ex- 
penses of  the  expedition  included  precautions  expressed  with  even 
greater  detail  than  in  previous  acts,  for  the  management  of  the 
expedition  by  the  commissioners  appointed  by  the  assembly.  Al- 
together some  £14,000  was  raised ;  and  for  accounting  for  it  and 
for  management  of  its  expenditure,  the  assembly  laid  down  strict 
rules  which  appear  to  have  been  followed,  to  its  own  satisfac- 
tion, at  least.  It  was  probably  due  to  a  combination  of  circum- 
stances, that  the  assembly  in  New  York  was  enabled  at  this  criti- 
cal moment  to  make  such  a  hopeful  beginning  in  the  realization 
of  its  designs.  These  circumstances  were  the  fear  of  stirring 
up  the  opposition  of  the  body  from  which  much  was  expected 
in  the  way  of  financial  assistance;  the  wielding,  even  though 
for  a  brief  time,  of  the  powders  of  the  governor's  commission 
by  a  locum-tenens  under  the  influence  of  Cornbury ;  and  the 
existence  of  a  determined  spirit  in  the  assembly  to  make  use 
of  the  precedent  set,  perhaps  inadvertently,  by  Lovelace  in 
the  Jersies.  The  assembly  had  succeeded  in  making  the  offi- 
cers of  government  entirely  dependent  on  its  votes  by  grant- 
ing a  continuation  of  the  most  certain  item  of  revenue  for  but  one 
year,  and  then  had  made  them  feel  that  dependence  by  doling  out 
to  but  few  of  the  officers  what  it  chose  by  way  of  salary.  It 
had  even  succeeded  in  its  favorite  aim  of  participating  in  the 
regulation  of  fees,  upon  which  some  officers  were  entirely  depend- 
ent and  others  dependent  in  an  uncomfortable  degree  for  their 
support.  In  this  last  feature  the  assembly  was,  however,  imme- 
diately checked  by  the  disallowance  of  the  Fee  Act  and  by  the 
instruction  specifically  committing  that  matter  to  the  governor  and 
council.^  In  the  nature  of  the  case,  however,  the  real  struggle 
was  bound  to  come  when  the  assembly  should  attempt  to  continue 
its  program,  with  a  newly-apponted  governor  in  the  possession 
of  the  executive  power.  Enough  has  been  said  about  the  designs 
of  the  assembly  to  show  that  what  it  was  really  aiming  at,  and 
what  was  resisted,  later,  so  vigorously  by  governor  and  council, 
was  a  shifting  of  the  balance  of  the  political  forces  of  the  prov- 
ince. Should  the  assembly  succeed  in  its  aim  of  controlling  the 
expenditure  for  the  ordinary  support  of  government  in  what 
seemed  to  it  the  only  effective  manner  of  preventing  "misman- 


Col.  Doc.  V.  116,  157. 


IN    NEW    YORK,     169I-I719.  I33 

agement,"  it  would  inevitably  mean  a  greater  dependence  of  the 
executive  officers  on  the  legislature  which  provided  their  remu- 
neration, than  on  the  governor,  whose  policy  they  were  supposed 
to  assist  in  executing.  If  successful,  the  assembly,  would,  in 
other  words,  make  its  position  in  the  working  constitution  of  the 
province  at  least  co-ordinate  with  that  of  the  governor.  The 
policy  actually  pursued  by  the  government  would  then  be  a  real 
compromise  between  the  aims  of  the  assembly  on  the  one  hand, 
and  the  governor  in  his  double  capacity  on  the  other,  rather  than, 
as  heretofore,  when  things  had  not  been  colored  by  partisan  fac- 
tion, the  policy  of  the  executive,  tempered  and  checked  by  the  ob- 
struction of  the  assembly.  It  is  impossible  to  say  how  fully  the 
assembly  realized  what  was  essentially  at  stake.  There  was  un- 
doubtedly much  of  simply  stubborn  and  unintelligent  obstruction. 
Our  sources  are  meagre,  and  only  the  outline  of  policy  and  hints 
at  what  the  leaders  were  actually  doing  are  possible.  Light  on 
the  inner  working  of  forces  and  on  the  real  aims  that  were  con- 
cealed beneath  the  formal  actions  taken  is  at  present  wanting. 
We  have  no  hint  as  to  any  prepossessions  or  as  to  any  infor- 
mation in  regard  to  the  situation,  which  may  have  been  brought 
by  Hunter  the  new  governor,  in  1710.  The  assembly,  which 
was  apparently  elected  after  his  arrival,  contained  a  majority  of 
members  who  had  served  in  the  previous  assembly,  and,  of  the 
nev/  members,  the  larger  part  were  persons  who  had  been  promi- 
nent in  the  affairs  of  the  assembly  during  the  Cornbury  admin- 
istration. A  very  important  place  among  the  new  members  was 
held  by  Lewis  Morris,  who  represented  the  borough  of  Westches- 
ter. Smith  represents  him  as  "always  busy  in  matters  of  a  political 
nature,  and  no  man  in  the  colony  equalled  him  in  the  knowledge 
of  the  law  and  the  arts  of  intrigue."  He  had  till  recently  been  a 
resident  of  New  Jersey,  where  he  had  had  a  most  active  career 
in  opposition  to  the  Cornbury  system  of  exploiting  the  governor's 
office;  and  Smith  apparently  applauds  Hunter's  shrewdness  in 
making  a  confidant  of  him,  "his  talents  and  advantages  rendering 
him  either  a  useful  friend  or  formidable  foe."^  The  two  were  a 
congenial  pair  in  more  than  one  relation,  but  Morris'  chief  func- 
tion was  to  act  as  Hunter's  legislative  "manager ;"  and  his  services 
in  bringing  the  revenue  controversy  to  a  settlement  were  after- 

^  Smith,  p.  203.     Col.  Doc.  V.  429. 


134  PHASES    OF    ROYAL    GOVERNMENT 

wards  rewarded  by  appointment  to  the  chief  justiceship  and  the 
appointment  was  cordially  approved  from  home  on  this  very 
ground. 

The  first  meeting  of  the  governor  with  the  assembly  partook 
of  the  nature  of  a  preliminary  skirmish.  In  his  opening  speech, 
I  September,  1710,  Hunter  communicated  the  'Very  particular" 
recommendation  of  her  Majesty  that  the  assembly  settle  such  a 
revenue  and  for  such  a  term  as  they  themselves,  "the  most  com- 
petent judges,  should  think  sufficient  to  answer  the  End."  Pay- 
ment of  the  public  debts  was  also  recommended.  In  the  course 
of  considering  ways  and  means  for  support  of  government,  the 
assembly  passed  bills  continuing  the  excise  and  the  tonnage  and 
slave  duties,  the  former  for  one,  the  latter  for  three  years ;  both 
of  which  bills  unamended  by  the  council,  became  laws.^  They 
had  then  resolved  to  allow  certain  sums  for  military  "incidents," 
and  2,500  ounces  of  plate,  "towards  defraying  His  Excellency's 
necessary  expense  for  one  year."  At  this  point  the  governor, 
hearing  of  this  proceeding,  sent  a  communication  to  be  entered 
on  the  journal,  containing  the  instruction  allowing  his  salary  of 
£1,200  sterling.  He  afterwards  reported  to  the  Lords  of  Trade 
that  the  only  effect  this  had  was,  that  they  struck  out  some  items 
that  had  been  usually  allowed  and  reduced  others,  and  that 
finally,  because  of  "warm  expressions"  which  he  used  in  urging 
the  assembly  to  take  the  governor's  message  into  consideration, 
Lewis  Morris  had  been  expelled.^ 

In  drder  to  raise  a  revenue  in  addition  to  the  excise  and  the 
totiriage  and  slave  duties,  the  assembly  now  began  upon  a  series 
of  bills  which  were  intended  to  provide  a  duty  on  chimneys  and 
hearths,  and  upon  goods  sold  at  auction,  and  also  entered  upon 
a  bill  fof  payment  of  certain  accounts  by  the  treasurer.  The 
council  attempted  to  amend  all  of  these.  Its  objection  to  the 
chimney  tax  had  reference  to  the  Accountability  of  the  treas- 
urer. By  the  assembly  bill  he  was  made  accountable  only  to 
the  assembly,  whereas  the  council  insisted  that,  according  to 
the  practice  of  the  province  since  1706,  and  also  according  to 
the  practice  of  England,  the  treasurer  in  such  a  case  should  ac- 
count with  the  legislature  as  a  whole.     The  assembly,  however, 


^Col.  Laws  I.  708-714. 

"^  Ass.  J.  I.  280-3.     Col.  Doc.  V.  177. 


IN    NEW    YORK,     169I-I719.  I35 

remained  constant  in  itvS  announced  determination  not  to  agree  to 
amendments  by  the  council  to  a  money  bill.  The  same  was  the 
case  with  the  act  for  laying  a  duty  on  goods  sold  at  auction, 
though  we  are  not  informed  as  to  the  reasons  for  its  objection  or 
for  the  insistence  of  both  sides  on  their  original  propositions.  In 
the  case  of  the  bill  for  the  treasurer's  paying  sundry  sums  of 
money,  the  council's  amendment  was  in  the  line  of  having  the 
treasurer  pay  a  sum  not  exceeding  that  mentioned  in  the  assembly 
bill,  to  such  persons  and  uses  as  the  governor  by  regular  warrant 
should  direct.  As  reasons  for  insisting  on  its  amendments, 
it  invoked  the  instruction  not  to  suffer  public  money  to  issue 
otherwise  than  by  such  warrant,  the  former  practice  of  the  prov- 
ince, the  practice  of  other  provitices,  and  of  the  English  parlia- 
ment, which  did  not  appropriate  what  was  given  for  support  of 
government,  but  gave  what  was  thought  necessary  in  such  man- 
ner as  left  it  entirely  in  the  power  of  the  crown  "to  Dispose  of  as 
they  thought  most  proper  for  the  support  of  government  and 
for  rewarding  their  servants  as  they  judged  they  deserved."  The 
assembly  replied,  that  what  were  called  amendments  would  de- 
stroy the  very  essence  and  intent  of  the  bill,  which  was  to  be 
regarded  as  consonant  with  the  instructions,  since  an  act  of 
governor,  council  and  assembly  was  a  good  warrant ;  that  appro- 
priating acts  were  no  novelty;  that  if  the  council  intended  that 
the  money  mentioned  in  the  bill  be  disposed  of  according  to  the 
direction  of  the  bill,  there  would  be  no  difficulty  in  consenting 
to  it, — "if  they  do  not,  plain  dealing  is  best."  And  finally,  the 
object  of  the  bill  was  declared  to  be  to  prevent  misapplications, 
"such  as  have  been  too  apparent  in  the  past."  This  object  they 
deemed  "much  preferable  to  any  posterior  remedy."  To  this 
the  council  replied,  that  the  amendments  were  not  destructive 
of  the  intent  of  the  bill  if  the  intent  were  to  support  the  govern- 
ment ;  denied  the  equivalency  of  an  act  of  assembly  to  a  warrant 
of  governor  and  council,  and  emphasized  the  distinction  pre- 
viously made  between  acts  appropriating  money  which  was  voted 
for  extraordinary  uses  and  for  the  ordinary  support  of  goveni- 
ment.  No  acts  of  the  latter  description  had  ever  passed 
the  parliament  of  England,  and  only  once  in  the  province ; 
that  was  in  Ingoldsby's  administration,  when  the  council  were 
not  acquainted  with  the  governor's  instructions.  They  affirmed 
their  intention  of  having  the  money  expended  for  the  purposes 


136  PHASES    OF    ROYAL    GOVERNMENT 

mentioned  in  the  bill ;  "but  they  think  the  Queen  has  the  sole  right 
of  applying  money  given  for  the  support  of  the  government,  and 
the  only  judge  of  the  merits  of  her  officers,  and  therefore  they 
made  those  amendments,  for  plain  dealing  is  best."  Finally,  they 
deprecated  the  idea  of  misapplications  under  present  circum- 
stances, and  pointed  out  that  the  bill,  as  amended,  sufficiently  pro- 
vided against  drawing  out  any  more  money,  than  that  expressed 
in  the  bill/  The  thoroughgoing  character  of  the  difference  be- 
tween the  two  houses  and  the  spirit  in  which  the  discussion  was 
carried  on  are  sufficiently  indicated  by  these  rather  full  extracts. 
As  the  season  was  far  advanced,  and  the  hope  of  reaching  a  settle- 
ment on  these  measures  was  slight,  the  assembly  was  prorogued 
without  the  passage  of  these  acts  into  laws.  By  the  failure  of 
the  bills  for  the  chimney  and  auction  duties,  the  expected  revenue 
was  reduced  far  below  even  what  the  act  for  the  treasurer's  pay- 
ing sundry  sums,  had  appropriated,  viz.,  £2,307;  and  by  the 
failure  of  the  last-named  act  the  public  officers  were  left  without 
support.  From  now  till  17 13,  they  were  maintained  largely  on 
the  personal  credit  of  the  governor. - 

Hunter's  correspondence  with  the  home  government  shows 
that  he  had  not  been  idle  during  the  session.  He  asserts  that  he 
had  privately  suggested  to  several  members  that  the  receiver 
general  might  be  made  accountable  to  the  assembly  as  well  as  to 
the  crown,  and  that  he  had  worked  out  a  somewhat  elaborate 
system  designed  to  prevent  any  governor  and  council  from  again 
loading  the  country  with  debt  through  warrants.  This  was  in- 
tended to  meet  one  of  the  reasons  given  by  assembly  members 
themselves  in  explanation  of  their  backwardness  in  supporting  the 
government.  The  othe  "pretended"  reason  was  the  burden  on 
the  country  which  was  involved  in  the  taxes  for  the  ill-starred 
Canada  expedition.  The  true  reasons,  so  far  as  he  could  make 
them  out  "from  private  discourse  with  the  most  considerable 
amongst  them,"  were  the  exemption  of  the  neighboring  govern- 
ments from  such  heavy  expense  in  supporting  the  government, 
and  an  opinion  which  was  opposed  to  the  right  of  the  crown 
to  allot  salaries,  on  the  ground  that  if  £1,200  were  appointed, 
£12,000  might  be.  The  third  reason  he  held  to  be,  the  fact,  that, 
by   reason  of  the  per  diem  allowance  to  each  assemblyman,  a 


Ass.  J.  I.  284-7.     Col.  Mss.  LIV.   121,   124. 
Col.  Doc.  V.  178. 


IN    NEW    YORK,     169I-I719.  I37 

number  of  them  practically  supported  themselves,  by  acquiring 
a  reputation  among  their  constituents  of  saving  the  country's 
money,  and  thus  getting  an  almost  permanent  hold  on  office.  As 
a  remedy  for  the  situation  he  could  only  suggest  the  passage  of 
an  act  of  parliament  providing  for  payment  by  all  lands  granted 
or  to  be  granted,  of  a  quit  rent  of  two  shillingfs  six  oence  per  one 
hundred  acres,  which  he  believed  would  go  a  long  ways  towards 
supporting  the  government ;  or  the  passage  of  another  act  of 
parliament  levying  duties  on  imports  and  exports,  and  laying 
an  excise  —  but  he  supposed  that  in  that  case  it  would  be  made 
of  general  application  throughout  the  colonies.  The  only  com- 
munication from  the  Lords  of  Trade  in  reply  to  these  repre- 
sentations that  could  have  reached  the  governor  before  meet- 
ing the  assembly  again  in  April,  171 1,  was  to  the  effect  that  the 
information  had  been  communicated  to  the  queen ;  so  that  the 
governor's  vigorous  speech  at  the  opening  of  the  session  could 
hardly  be  described  as  made  only  after  be  had  learned  the  senti- 
ments of  the  ministry,  as  Smith  intimates.  The  sting  of  this 
speech  consisted  principally  in  the  suggestion  that  rumors  might 
gain  credit  at  last,  "that  however  your  Resentment  has  fallen  upon 
Governors,  it  is  the  Government  that  you  dislike ;"  and  in  the  as- 
sertion that  "giving  Money  for  Support  of  Government  and  dis- 
posing of  it  at  your  Pleasure  is  the  same  with  giving  none  at  all." 
Because  of  its  resentment  at  this  speech,  in  which  the  governor 
plainly  took  up  the  cause  of  the  council  in  the  recent  disputes, 
the  assembly  chose  to  find  a  scruple  in  the  fact  that  the  proclama- 
tion proroguing  them  from  the  original  date  of  summons  had 
been  dated  at  Burlington,  New  Jersey.  The  governor  found 
himself  obliged  to  follow  the  advice  of  the  council,  that,  since 
the  assembly  was  resolved  not  to  act,  in  spite  of  the  opinion  of 
the  Lords  of  Trade  quieting  their  pretended  scruple,  it  would 
be  necessary  to  dissolve  them,  "which  they  would  otherwise 
doe  themselves."^  Hunter  now  represented  himself  to  the  home 
government  as  at  a  loss  what  to  do  till  action  might  be  taken 
from  home.  He  had  no  expectations  that  a  new  assembly  would 
be  any  more  tractable,  "the  Resolutions  of  putting  themselves 
on  the  same  foote  with  the  Charter  Governments  being  too 
general  to  be  allayed  by  any  measures  that  can  be  taken  on  this 

'Col.    Doc.    V.    179-80,    186.    Ass.    J.    I.    287-8.     Council    J.    I.    311. 
Smith,  p.  204. 


138  PHASES    OF    ROYAL    GOVERNMENT 

side."  His  desires  with  regard  to  action  by  the  home  govern- 
ment seem  to  have  been  justified  by  the  proceedings  of  the  Lords 
of  Trade,  who  with  unusual  celerity  had  recommended  that  the 
governor  be  directed  to  intimate  to  the  assembly  the  queen's 
displeasure,  and  the  likelihood  of  the  passage  of  an  act  of  par- 
liament granting  a  revenue  for  them.  And  within  a  month  they 
had,  as  ordered  by  the  privy  council,  prepared  a  draft  of  a  bill 
for  that  purpose,  which,  however,  was  not  perfected  before  the 
adjournment  of  parliament.^ 

In  the  meantime  a  new  assembly  had  been  elected,  and 
proved  indeed  to  be  practically  the  same  in  membership  as  the  pre- 
ceding body.  Its  first  session,  in  July,  171 1,  was  taken  up  wholly 
with  action  relative  to  the  Canada  expedition  of  that  year.  Bills 
of  credit  to  the  amount  of  iio,ooo  were  ordered  to  be  issued  and 
provision  was  made  for  their  redemption  by  a  direct  tax,  due  to  be 
paid  in  five  annual  installments,  beginning  in  1714.  Six  hundred 
men  were  raised  and  commissioners  were  appointed  for  purchas- 
ing, transporting  and  caring  for  provisions  for  the  troops,  having 
the  same  relation  to  the  treasurer  as  in  the  case  of  the  preceding 
expedition.  In  all  these  proceedings,  as  in  the  act  for  continuing 
the  excise  for  two  years,  no  difficulty  in  the  relations  between  the 
assembly  and  council  developed  —  that  is,  on  the  surface.  The 
pains  taken  to  avoid  the  slightest  opportunity  for  trouble  of  that 
sort  is  indicated  by  the  governor's  procedure  on  finding  certain 
mistakes  in  the  bills  as  they  came  from  the  assembly.  He  re- 
turned the  bills  privately,  after  their  first  reading  in  council,  as 
though  they  had  not  been  read  at  all,  and  with  the  request  that 
the  mistakes  be  amended  in  their  own  house.  "This  conduct 
.     .     .     I  was  obliged  to  follow  or  baulk  the  Expedition."^ 

In  a  most  interesting  disquisition  to  the  Lords  of  Trade 
upon  the  design  of  the  assemblies  on  the  continent,  by  claiming 
all  the  privileges  of  a  House  of  Commons  and  stretching  them 
even  beyond  what  they  were  ever  imagined  to  be  there,  to  attain  a 
condition  which  would  result  in  a  federative  empire,  Hunter 
suggests  as  a  temporary  measure,  that  a  royal  letter  from  the 
queen  be  dispatched,  reminding  the  assembly  that  ''all  such 
privileges  as  they  clayme  as  bodyes  politick  they   hold   of  her 


'Col.  Doc.  V.  192,  197,  209,  285. 

'  Col.  Laws  I.  723,  727.  735,  737.    Col.  Doc.  V.  263. 


IN    NEW    YORK^    169I-I719.  I39 

especiall  grace  and  noe  longer  than  they  shall  use  them  for  her 
interest  and  for  the  support  of  her  government."  This  he  sug- 
gested not  with  the  expectation  that  it  would  contribute  to  the 
settling  of  a  revenue,  but  in  the  hope  that  it  would  help  to  keep 
them  in  bounds  in  other  matters.^ 

It  was  apparently,  then,  not  without  ofBcial  inspiration  that 
the  dispute  between  the  council  and  assembly  at  the  fall  session 
of  171 1  turned  largely  on  the  discussion  of  the  status  of  the  two 
houses  in  the  matter  of  financial  legislation.  The  occasion  of  the 
dispute  was  furnished  by  two  bills  sent  up  by  the  assembly,  one 
providing  for  an  increase  of  the  tonnage  duty,  and  the  other  for 
a  duty  on  chimnies  and  for  a  poll-tax.  The  council's  objection 
to  both  bills  was  that  the  duties  were  to  be  paid  to  the  colony 
treasurer  instead  of  to  the  receiver  general.  By  the  latter  bill, 
the  treasurer  was  made  accountable  to  no  one,  and  by  the  former 
to  the  governor  and  assembly.  The  amendments  were  directed 
toward  making  the  monies  payable  to  the  receiver  general,  who, 
as  a  concession,  was  made  accountable  to  governor,  council  and 
assembly,  as  well  as  to  the  queen.  The  proceeds  of  the  tonnage 
duty  were  further  directed  to  be  issued  in  a  manner  pursuant  to  the 
instructions.  To  all  of  this  the  assembly  replied  by  merely 
returning  the  bills,  with  notification  of  its  resolve  not  to  admit 
such  amendments.  The  same  old  issue  was  thus  joined  again.  In 
the  exchange  of  reasons  in  support  of  their  respective  positions, 
the  council  upbraided  the  assembly  by  citation  of  previous  in- 
stances of  their  allowing  such  amendments.  It  then  went  on 
to  justify  its  right  by  asserting  the  equality  of  the  position  of 
the  two  houses  in  the  legislature,  both  being  constituted  by  the 
same  power,  viz.,  "the  mere  grace  of  the  Crown  signified  in  the 
Governor's  Commission,"  and  by  the  opinion  of  the  Lords  of 
Trade  obtained  in  the  course  of  the  struggle  for  the  treasurer. 
The  bulk  of  the  assembly's  reply  is  sufficiently  remarkable  to 
justify  quotation  entire :  "'Tis  true  the  Share  the  Council  have  (if 
any)  in  the  Legislation  does  not  flow  from  any  Title  they  have, 
from  the  Nature  of  that  Board,  which  is  only  to  advise,  or  from 
their  being  another  distinct  State  or  Rank  of  People,  in  the  Con- 
stitution which  they  are  not,  being  all  Commons,  but  only  from 
the  meer  Pleasure  of  the   Prince  signified   in  the   Commission. 


Col.  Doc.  V.  255-6. 


140  PHASES    OF    ROYAL    GOVERNMENT 

"On  the  contrary,  the  inherent  Right  the  Assembly  have  to 
dispose  of  the  Money  of  the  Freemen  of  this  Colony,  does  not 
proceed  from  any  Commission,  Letters  Patent,  or  other  Grant 
from  the  Crown,  but  from  the  free  Choice  and  Election  of  the 
People ;  who  ought  not  to  be  divested  of  their  Property  (nor  justly 
can)  without  their  Consent. 

"Any  former  Condescensions  of  other  Assemblies,  will  not 
prescribe  to  the  Council,  a  Privilege  to  make  any  of  those  Amend- 
ments and  therefore  they  have  it  not. 

"If  the  Lords  Commissioners  for  Trade  and  Plantations,  did 
conceive  no  Reason,  why  the  Council  should  not  have  Right  to 
amend  Money  Bills,  is  far  from  concluding  there  are  none;  the 
Assembly  understand  them  very  well,  and  are  sufficiently  con- 
vinced of  the  Necessity  they  are  in,  not  to  admit  of  any  Incroach- 
ment  so  much  to  their  Prejudice."^ 

Bills  directing  the  treasurer  to  pay  certain  sums  of  money 
for  some  of  the  usual  purposes  of  government  and  for  certain  sal- 
aries, appropriating  a  definite  sum  for  each  purpose  and  for  each 
salary,  were  also  sent  up,  and  on  the  repeated  attempt  of  the 
council  to  amend  them,  met  with  the  sam.e  fate.  The  temper  of 
the  assembly  towards  the  governor  personally  is  indicated  by  its 
passage  of  acts  for  repair  of  fortifications  and  for  support  of 
troops  on  winter  service  on  the  frontier,  by  which  the  sums  w^ere 
directed  to  be  paid  to  the  governor  with  only  general  directions  as 
to  their  use.  The  general  temper  of  the  assembly  on  the  issue 
imder  discussion  was,  however,  alarmingly  indicated,  in  the 
opinion  expressed  by  the  council  in  its  representation  to  the 
crown,  by  the  resolves  into  which  they  entered  at  the  close 
of  the  session,  to  the  effect  that  establishing  fees  without  consent 
in  general  assembly  was  contrary  to  law ;  and  that  erecting  a  court 
of  chancery  without  consent  in  general  assembly  was  contrary 
to  law,  without  precedent  and  of  dangerous  consequence  to  the 
liberty  and  property  of  the  subject.  The  opinion  of  both  gover- 
nor and  council  on  these  proceedings  is  well  reflected  in  Hun- 
ter's words :  —  "now  the  mask  is  thrown  off ;  they  have  called 
in  question  the  Council's  share  in  legislation,  trumpt  up  an  in- 
herent right,  declared  powers  granted  by  her  Majesty's  letters 
patent  to  be  against  law  and  have  but  one  short  step  to  make 


Ass.  J.  I.  307.     Col.  Doc.  V.  293. 


IN    NEW    YORK,     169I-I719.  I4I 

towards  what  I  am  unwilling  to  name.  The  Connecticut  scheme 
is  what  they  have  in  their  heads. "^ 

The  ambitions  of  the  assembly  were  further  displayed  in 
their  attempted  acts  of  legislation.  After  the  disallowance  of  the 
fee  act  of  1709,  Hunter  had  been  instructed  specifically  to  regu- 
late and  establish  fees  with  the  assistance  of  the  council,  and  of 
this  the  assembly  had  been  informed.  In  making  a  Table  of  Fees 
the  council's  opinion,  that  they  had  been  too  high,  prevailed 
against  the  governor's  judgment,  and  the  resulting  ordinance  was 
a  grievance  to  some  of  the  officers.  The  assembly  had  never- 
theless persisted  in  the  attempt  to  attain  a  share  in  control  of  this 
matter  by  establishing  the  precedent  of  enacting  the  ordinance 
as  established  by  the  council  in  the  form  of  a  statute ;  but  as  the 
Lords  of  Trade  had  manifested  a  certain  hesitation  in  regard  to 
certain  items  as  just  established,  the  council  let  the  assembly  bill 
lie  on  the  table.  The  assembly's  resolve  on  the  subject  was 
later  declared  by  the  Lords  of  Trade  to  be  "very  presumptuous," 
though  in  the  same  sentence  they  disclaimed  objection  to  the  enact- 
ment of  the  ordinance  into  law." 

The  ambition  of  the  assembly  to  venture  upon  regions  of 
power  hitherto  untrodden  is  further  indicated  by  the  act  for  the 
assigning  of  sheriffs,  an  attempted  invasion  of  the  governor's 
prerogative  of  appointment,  according  to  Hunter ;  and  by  the  act 
for  an  agency,  which,  by  the  same  person,  was  described  as  an 
attempt  to  make  the  agent  a  representative  exclusively  of  the 
assembly,  by  making  his  appointment,  instruction  and  support  a 
matter  in  that  body's  entire  control.  According  to  Hunter's  in- 
formation, the  assembly's  choice,  in  case  of  success,  would  have 
fallen  on  Colonel  Lodwick,  of  London,  whose  letters  to  DePeyster 
had  been  extensively  used  to  obstruct  the  settlement  of  a  revenue. 
The  assembly  had  also  used  its  legislative  powers  in  obstructing 
the  attempt  of  the  governor  and  council  to  develop  the  crown's 
territorial  revenue,  by  pigeon-holing  a  bill  for  the  more  effectual 
discovery  and  payment  of  quit-rents.^ 

The  situation  of  the  governor  was  now  becoming  more  and 
more  difficult.     The  retirement  from  office  in  England  of  the  min- 


'  Col.  Laws  I.  746,  750.     Col.  Doc.  V.  296.     Ass.  J.  3,  309. 

'  Ass.  J.  I.  274.    Col.  Doc.  V.  184,  216,  230-1,  238,  298,  333,  359. 

'  Col.  Doc.  V.  299,  300. 


142  PHASES    OF    ROYAL    GOVERNMENT 

istry  which  was  responsible  for  the  Palatine  enterprise  suspended 
the  payment  of  bills  which  had  been  contracted  by  Hunter  for 
their  subsistence.  Probably  from  the  same  cause,  his  bills  in- 
curred in  connection  w4th  his  duties  in  provisioning  the  Canada 
expedition  met  with  obstruction.  These,  and  the  like  circum- 
stances connected  with  the  refusal  of  the  assembly  to  proceed  in 
the  required  manner  in  the  support  of  the  provincial  government, 
put  him  in  the  greatest  financial  embarrassment.  His  situation 
also  gave  opportunity  to  his  enemies  to  play  the  familiar  game 
of  discrediting  him  in  the  province  by  tales  of  his  lack  of  "in- 
terest" at  court;  at  the  same  time  that,  by  obstructive  tactics, 
they  prevented  a  settlement  of  the  revenue  in  the  hope  of  getting 
him  actually  recalled  on  that  score.  The  most  active  force  in 
this  lobby  at  court  seems  to  have  been  Cornbury,  now  Earl  of 
Clarendon ;  while  in  the  province  the  Anglican  clergy,  led  by 
Vesey,  of  New  York,  by  the  most  ingenious  attempts  to  get 
themselves  persecuted,  labored  hard  to  raise  the  cry  of  "The 
Church  in  danger,"  with  the  purpose  of  getting  Nicholson,  the 
zealous  Churchman,  appointed  to  Hunter's  place.  We  have  the 
testimony  of  Colden  to  the  effect  that  the  clouds  of  disfavor  sur- 
rounding Hunter  on  all  these  accounts  were  gradually  but  very 
effectively  dispelled  by  a  real  personal  popularity,  which  before 
long  became  a  definite  force  in  the  political  situation.^ 

Under  these  circumstances,  the  two  sessions  of  1712  did  little 
to  advance  the  controversy.  At  the  autumn  session  the  gov- 
ernor in  his  speech  proposed  the  scheme  which  he  had  mentioned 
privately  to  members  of  the  previous  assembly.  The  scheme 
provided  elaborately  and,  it  would  seem,  effectively,  against  the 
issue  at  any  given  time  of  warrants  for  more  money  than  was  in 
the  hands  of  the  collector,  chiefly  by  precautions  for  keeping  the 
governor  and  council  informed,  and  against  partiality  on  the  part 
of  the  collector  in  making  payments  of  warrants.  The  assembly 
could  not  be  brought  to  pay  any  attention  to  this  scheme,  and  in 
general  continued  their  policy  of  "bantering  the  government  by 
proposing  bills  they  know  cannot  pass,  or,  if  passed,  would  raise 
no  money ;"  though  bills  for  the  payment  of  a  few  items  of  gov- 
enmient  support  were  grudgingly  allowed  to  slip  through  without 

'  Col.  Doc.  V.  400,  402-3,  420,  447-453,  310-329,  336-8,  356-7.  N.  Y. 
Hist.   Soc.   Colls.   1808,  pp.  200-202. 


IN    NEW.   YORK,     169I-I719.  I43 

the  objectionable  features,  and  every  hint  v/as  given  to  the  gover- 
nor of  a  wilHngness  to  make  him,  personally,  "easy."  The  climax 
of  the  assembly's  "undutiful  conduct"  was  reached,  when  after 
being  informed  of  the  council's  representation  to  the  crown  con- 
cerning their  proceedings  the  year  before,  they  composed  an  ad- 
dress to  the  queen,  complaining  of  being  misrepresented  and  de- 
siring permission  to  maintain  an  agent.  For  this  "disrespectful 
behaviour"  the  governor  thought  it  necessary  to  dissolve  them, 
though  he  had  no  hope  of  a  new  assembly.^ 

The  home  government  in  the  meantime  supported  the  posi- 
tion taken  by  the  council,  specifically  rebuked  the  assembly  for 
its  claims  and  revived  the  plan  of  proceeding  by  act  of  parlia- 
ment. The  sincerity  of  their  maneuvering  with  the  weapon  of 
parliamentary  interference  is,  however,  seriously  impugned  by  a 
passage  in  one  of  Hunter's  letters,  which  strongly  intimates  that 
the  bill  prepared  and  introduced  was  never  intended  to  be  passed ; 
as  well  as  by  the  opinion  of  some  of  Hunter's  friends  that  the  set- 
tling of  a  revenue,  even  by  act  of  parliament,  would  mean  his 
removal,  to  make  way  for  a  ministerial  favorite,  now  that  the  place 
had  been  made  "easy."^  More  efficacious  in  the  improvement  of 
the  position  of  the  executive  officers  was  the  activity  of  the  Lords 
of  Trade  and  of  the  attorney-general  in  support  of  Hunter's  ef- 
forts, through  the  issue  of  chancery  writs,  to  collect  quit  rents 
and  their  arrears.  After  several  years  during  which  payments 
of  this  kind  had  wholly  ceased,  this  practice  had  the  effect  of  soon 
bringing  the  total  produce  of  this  item  to  some  £300  or  £400,  and 
finally  even  to  £600.  An  effort  was  also  begun  at  this  time  to 
realize  effectually  on  such  regalian  rights  as  the  licensing  of 
the  whale-fishery,  and  the  escheat  of  real  property.  These  efforts 
could  not,  however,  be  expected  to  bear  fruit  for  some  time  yet, 
and  in  the  meantime  the  issue  between  the  governor  and  council 
and  the  assembly  was  as  pressing  and  significant  as  ever.^ 

In  the  elections  for  a  new  assembly,  held  in  the  spring  of 
1713,  the  governor  seems  to  have  made  every  effort  short  of 
interference  with  the  personnel  of  county  officers  having  to  do 


'  Ass.  J.  I.  321.     Col.  Doc.  V.  339-40,  348,  350,  356. 
'Col.  Doc.  V.  330.  333,  356,  359,  367,  389,  543. 
'  Col.  Doc.  V.  357.  362-3.  368-70,  378,  555-61,  498-9. 


144  PHASES    OF    ROYAL    GOVERNMENT 

with  elections.  Smith  describes  the  elections  as  "very  hot."  Six 
changes  in  membership  appeared,  and  one  constituency  was  added 
—  Dutchess  County  being  separated  from  Ulster  and  given  one 
member.  With  a  possible  change  of  seven  votes,  the  majority 
was,  however,  still  "in  the  interest  of  the  late  Assembly."  The 
governor  himself  was  exceedingly  skeptical,  and  expected  a 
speedy  dissolution,  after  which  be  warned  the  Lords  of  Trade  to 
"expect  to  hear  of  alterations  in  the  commissions  of  peace  and  of 
the  militia,  that  ill  men  may  no  longer  use  her  Majesty's  author- 
ity against  her."^  Nevertheless  he  met  this  assembly  with  a  stout 
front,  and  in  his  speech  at  the  opening  of  the  session  informed 
them  that  they  were  called  to  settle  a  revenue  for  the  support  of  the 
government  and  not  to  settle  the  government  itself;  re-affirmed 
his  course  of  conduct  with  reference  to  method  of  support ;  inti- 
mated his  intention  not  to  pass  any  important  act  of  legislation 
without  efficient  procedure  in  providing  for  a  support  of  gov- 
ernment; and  hinted  again  at  the  threat  of  parliamentary  inter- 
ference. He  suggested  more  frequent  consultation  with  the 
council  in  framing  bills,  to  avoid  the  necessity  of  amendments 
and  the  disputes  over  the  right  of  making  them.^ 

With  this  session  began  the  slow,  hesitating  process,  at  all 
stages  uncertain  of  ultimate  success,  which  actually  served  to 
remove  the  political  confusion  of  the  province.  It  is  impos- 
sible to  know  to  what  extent  the  settlement  w'as  conceived  of  as 
a  systematic  affair.  In  its  actual  achievement  the  piece- 
meal method  appears,  and  at  no  time  did  Hunter  appear  in  any 
degree  confident  of  its  efficacy.  It  seems  likely,  from  the  tone 
of  his  references  at  all  stages  of  the  affair,  that  the  enterprise 
grew  on  the  hands  of  all  concerned,  till  a  point  was  reached  when 
the  possible  significance  of  what  had  already  been  attained  became 
evident,  and  then  the  governor  bent  all  his  energies  to  the  preser- 
vation of  a  system  which  was  designed  to  protect  what  had  al- 
ready been  reached.  The  first  line  of  policy  looking  towards  any- 
thing permanent  in  its  nature  into  which  the  assembly  entered, 
was  that  of  the  payment  of  the  public  debts.  Rehabilitation  of 
the  public  credit  in  some  way  had  been  made  at  first  a  matter  of 
equal  importance,  in  the  governor's  recommendations,  with  the 
support  of  government;    but  the  contest  seems  almost  immedi- 


Col.    Doc.   V.   364.     Smith,   223. 
Ass.  J.  I.  333. 


IN    NEW    YORK,     169I-I719.  145 

ately  to  have  centered  on  the  latter  feature.  This  assembly 
seemed  ready  to  begin  at  the  other  end  of  the  problem,  and 
spent  much  time  during  its  first  session  in  May  and  June  of 
17 1 3,  in  considering  the  report  of  its  committee  on  claims,  the 
appointment  of  which  had  been  one  of  the  few  achievements 
of  the  previous  assembly.  As  the  fruit  of  these  deliberations, 
a  bill  was  presented  to  the  governor  at  the  close  of  the  session 
granting  the  excise  as  then  managed  for  twenty  years,  and 
appropriating  the  proceeds  to  the  payment  of  the  public  debts 
in  such  manner  as  future  legislation  should  determine.  The 
governor  was  evidently  unwilling  to  commit  himself  to  a  meas- 
ure which  put  such  great  sums  into  the  hands  of  the  treasurer, 
without  assurance  that  the  proposal  to  pay  the  debts  was  made 
in  good  faith ;  and  did  not  give  his  assent  till  the  reassembling 
of  the  legislature  in  the  fall  of  the  same  year.^ 

In  the  meantime  a  duty  on  goods  sold  at  auction  had  been 
granted  without  specific  application,  and,  for  the  first  time  since 
1709,  a  "Supply  towards  supporting  the  government."  It  was  only 
for  one  year,  and  was  inadequate,  viz.  £2,800,  to  be  raised  by 
duties  on  imported  rum  and  wines  and  European  goods  from  the 
plantations,  with  discriminations  in  the  rates  in  favor  of  local 
shipping.  But  the  objectionable  features  of  previous  acts  were 
omitted,  and  the  .  act  provided  that,  if  these  duties  should  not 
amount  to  £2,800,  the  treasurer,  on  certificate  to  that  effect  by  the 
receiver  general,  should  make  up  the  deficiency  out  of  any  public 
money  in  his  hands.  The  receiver  general  was  made  accountable 
for  the  proceeds  of  the  duties  to  the  governor,  council  and  as- 
sembly." 

The  governor  was  not  satisfied  with  this  as  a  support  of  gov- 
ernment, but  the  fact  that  both  sides  should  have  cooperated  at  all 
in  an  arrangement  involving  so  many  departures  from  the  ideals 
for  which  they  had  striven  seems  to  argue  that  this  was  only  a 
part  of  a  more  complex  affair.  That  this  was  so,  seems  to  be 
borne  out  in  part  by  the  character  of  the  act  for  the  payment  of 
the  debts,  which  was  only  passed  after  a  long  session  in  17 14 
which  was  exclusively  devoted  to  that  subject.  The  act  provided 
for  the  payment  of  accounts  amounting  to  £27,684,  the  payment 


'  Ass.  J.  I.  342-5.     Col  Doc.  V.  365-7.     Col.  Laws  I.  785. 
'  Col.  Laws  I.  779. 
*10 


146  PHASES    OF    ROYAL    GOVERNMENT 

including  what  the  governor  had  expended  on  his  personal  credit 
in  the  course  of  maintaining  the  government  during  the  years  of 
controversy;  accounts  presented  by  a  number  of  prominent  Anti- 
Leislerians  for  disbursements  in  connection  with  the  conduct  of 
government  for  a  number  of  years  past ;  an  account  of  over 
£2,000  due  to  the  Leisler  family ;  payments  to  military  and  civil 
officers  covering  nearly  the  whole  period  since  Leisler ;  and  the 
per  diem  allowance  to  members  of  the  assembly  for  the  time  of  the 
long  session  which  was  occupied  with  this  subject.  Golden 
charged  the  assembly  in  this  proceeding  with  partiality  for  the 
Leislerians,  and  asserted  that  the  misapplications  of  previous  gov- 
ernors were  not  to  be  compared  v/ith  the  profuseness  of  this  body. 
But  a  dispassionate  view  of  the  matter  will  credit  the  preamble  of 
the  act  with  more  sincerity  than  Golden  would  allow  to  it.  This 
preamble  recited  the  great  misapplications,  the  resulting  destruc- 
tion of  public  credit,  the  suffering  that  would  ensue  upon  repudi- 
ation of  the  claims  involved  in  the  unpaid  warrants,  which  were 
circulating  in  a  way  like  bills  of  credit ;  and  stated  the  object  of 
their  proceedings  to  be  the  restoration  of  credit  by  the  discharge 
of  these  claims  and  the  fixing  it  on  such  a  foundation  as  would 
conduce  to  the  good  of  the  queen's  service  and  to  the  settling 
the  minds  of  the  inhabitants  and  burying  strifes  and  animosities. 
For  such  a  purpose  it  is  not  surprising  that  some  of  the  claims 
discharged  should  have  a  bearing  upon  matters  erstwhile  of  par- 
tisan significance.  But  if  the  analysis  of  the  payments  authorized 
by  the  act  be  correct,  the  proportion  of  such  payments  cannot  be 
called  excessive,  while,  in  its  effects,  the  act,  according  to  Hunter, 
made  a  fundamental  contribution  towards  the  object  mentioned 
in  the  preamble.  The  act  further  provided  for  the  issue  of  bills 
of  credit  for  the  amount  which  was  ordered  to  be  paid  as  the 
province's  indebtedness,  and  for  the  redemption  of  the  bills  at 
periodic  intervals  as  the  proceeds  of  the  excise  came  into  the 
hands  of  the  treasurer.  The  act  included  a  form  of  oath  to  be 
taken  by  the  treasurer  and  by  the  auditors  appointed  for  the  pur- 
poses of  the  act ;  made  the  treasurer  accountable  to  governor, 
council  and  assembly ;  and  provided  in  set  terms  for  the  disposi- 
tion of  all  the  money  to  be  raised  in  the  future  by  act  of  assembly 
and  lodged  in  the  treasurer's  hands,  only  in  accordance  with  acts 
of  assembly ;  and  for  the  disposition  of  all  money  raised  by  act  of 
assembly  for  support  of  government  and  lodged  in  the  hands  of 


IN    NEW    YORK,     169I-I719.  147 

the  receiver  general,  by  warrant  from  the  governor  and  council 
with  the  consent  of  the  majority  of  the  council  present.^ 

In  defense  of  the  bill  against  the  attacks  made  upon  it  by  the 
obstructive  lobby  at  court,  Hunter  described  it  as  practically  a 
bill  for  the  support  of  government,  since  it  provided  for  expenses 
incurred  in  past  support.  He  pointed  with  pride  to  the  reviving 
prosperity  of  the  province,  resulting  from  the  superior  credit  of 
the  bills  issued  by  the  act,  and  intimated  that  a  formidable  part  of 
the  opposition  to  this  and  associated  measures  was  carried  on  by 
those  who,  in  the  previously  distressful  condition  of  public  credit, 
had  had  what  amounted  to  a  monopoly  of  the  control  of  availa- 
ble capital.  The  council  and  assembly  joined  in  an  address  to 
the  Lords  of  Trade  in  further  defence  of  the  act,  commenting 
with  fine  scorn  on  the  spectacle  of  Cornbury's  complaint  of  unjust 
treatment,  "seeing  the  money  given  for  the  Support  of  this  gov- 
ernment Dureing  the  hole  Course  of  his  administration  was  Suf- 
ficient with  any  tolerable  good  Management  to  have  Defrayed 
the  proper  necessary  Expences  of  it."  Whether  due  to  the  vig- 
orous character  of  these  representations  or  to  the  precaution 
taken  by  the  assembly  to  appropriate  by  resolve  £310  out  of  the 
next  year's  excise  towards  getting  the  royal  assent  to  the  act, 
it  was  promptly  confirmed  at  home  and  a  long  step  was  thereby 
taken  toward  the  removal  of  the  previous  confusion. 

Not  the  least  important  feature  of  the  act  was  the  clause 
making  declaration  of  the  future  policy  of  the  assembly  in  pro- 
viding for  the  custody  of  public  money.  On  careful  inspection 
of  this  clause  it  will  be  observed  that  only  in  case  money  granted 
for  support  of  government  was  directed  by  the  terms  of  the  act 
to  be  lodged  in  the  hands  of  the  receiver  general,  was  it  to  be 
issued  out  by  warrant  from  the  governor  and  council.  How 
much  deliberate  guile  there  was  in  the  careful  wording  of  this 
clause  we  have  no  means  of  knowing.  It  was  afterwards  de- 
scribed by  the  auditor  general  of  the  plantations  as  a  "quirk" 
by  means  of  which  the  assembly  "gott  the  entire  Receipt  and  dis- 
position of  His  Majesty's  Revenue  into  their  own  power."  And 
as  a  matter  of  fact  practically  no  money  thereafter  granted  for 
the  support  of  government  was  directed  to  be  lodged  in  the  hands 
of  the  receiver  general,  and  his  duties  were  thus  reduced  almost 


Col.  Laws  I.  815.     N.  Y.  Hist.   Soc.  Colls.   1868,  p.  202. 


148  PPIASES    OF    ROYAL    GOVERNMENT 

solely  to  the  receipt  of  the  quit  rents  and  administration  of  the 
imperial  trade  system.^ 

During  the  process  of  adjusting  the  matter  of  public  debts, 
a  certain  provision  already  referred  to,  had  been  made  for  the 
support  of  government  for  one  year ;  and  at  the  expiration  of  this 
period  the  same  arrangement,  with  some  slight  modification,  was 
made  for  another  year.  At  the  same  time  a  tonnage  duty  and  an 
import  duty  on  slaves,  to  be  collected  by  an  officer  appointed  by 
the  assembly  and  to  be  paid  to  the  treasurer,  was  granted  for  two 
years.  No  object  was  mentioned  to  which  this  duty  was  to  be 
applied,  the  disposition  being  referred  to  future  legislation.  But 
the  absence  of  clauses  making  specific  appropriation  of  money 
given  for  support  of  government,  which  had  been  a  feature  of 
this  bill  in  previous  sessions,  brought  it  within  the  limits  of  the 
governor's  competency  of  assent.  Once  the  money  was  actually 
available  for  public  purposes,  it  would  depend  on  the  effectiveness 
of  the  governor's  "interest"  in  the  assembly  how  much  of  it 
could  be  directed  by  legislative  act  to  the  support  of  government. 
At  this  session  also,  the  proceeds  from  peddlers'  licenses  were 
granted  for  four  years  towards  the  support  of  government  with- 
out any  appropriating  clauses,  and  were  to  be  paid  to  the  receiver 
general  —  one  of  a  very  few  such  instances.  The  management 
of  the  excise  was  also  changed,  by  taking  it  from  the  hands  of  the 
justices  of  the  peace  in  the  counties  and  the  mayors  and  aldermen 
of  the  cities,  and  giving  it  to  commissioners  appointed  in  the 
body  of  the  act,  who  were  required  to  give  security  and  were 
allowed  an  assigned  per  cent,  of  the  proceeds.^ 

We  have  no  means  of  knowing  how  well  justified  was  Hun- 
ter's stubborn  skepticism,  even  after  the  passage  of  the  debt  bill 
. —  the  "first  long  bill,"  as  it  was  called  —  as  to  the  assembly's  in- 
tentions concerning  the  support  of  government;  for  the  demise 
of  the  crown  worked  the  dissolution  of  this  body.  The  body 
which  came  together  in  May,  171 5,  contained  a  majority  of  mem- 
bers of  the  previous  assembly.  There  were  six  changes  in  mem- 
bership, the  delegation  of  three  from  Albany  County  and  of  two 
from  Westchester  County  and  the  representative  from  Rensse- 
laerwick  being  entirely  new.     There  was  also  an  enlargement  of 

'  Ass.  J.  I.  366.     Col.  Doc.  V.  380,  494,  405-6,  412. 
*  Col.  Laws  I.  801,  805,  812.     Col.  Doc.  V.  377-80. 


IN    NEW    YORK,     169I-I719.  I49 

membership  due  to  the  return  of  two  representatives  from  Dutch- 
ess County,  instead  of  one.  Nevertheless,  according  to  Hunter's 
"plain  and  true  history"  of  the  affair,  related  to  the  Lords  of 
Trade,  it  was  only  after  the  expulsion  of  Mulford,  a  turbulent 
member  from  Suffolk  County,  that  "that  part  of  the  house  that 
was  in  earnest"  about  the  revenue  "got  the  majority."  Appar- 
ently, then,  even  under  the  circumstances  about  to  be  related,  it 
was  only  by  a  tour  de  force  that  effective  action  in  the  matter  of 
a  relatively  permanent  support  of  government  could  be  attained. 
Hunter  frankly  sets  forth  in  his  letter  to  the  Lords  of  Trade, 
which  is  our  only  source  of  information,  that  an  act  for  settling 
a  revenue  for  the  support  of  government  during  five  years,  and 
an  act  for  a  general  naturalization  were  deliberately  exchanged 
the  one  for  the  other  by  the  parties  to  the  controversy.  Through- 
out his  whole  communication  there  runs  a  flavor  of  semi-defiant 
apology.  His  experience  on  the  spot  convinces  him  that  the  price 
paid  for  a  settlement  is  not  too  high,  but  he  is  evidently  not  so 
sure  that  the  Lords  of  Trade  will  view  it  in  that  light.^ 

The  "Revenue  Act"  granted,  for  five  years,  "for  the  better 
defraying  the  publick  and  necessary  charges  ...  of  this  gov- 
ernment," duties  on  imported  wines  and  distilled  Hquors,  cocoa, 
European  goods,  and  slaves ;  and  also  tonnage  duties,  making 
distinctions  in  the  rates  between  goods  imported  from  the  place  of 
growth  or  manufacture  and  from  other  places,  and  excepting 
from  the  tonnage  duty  coasting  sloops  from  the  neighboring  colo- 
nies, ships  directly  from  Great  Britain  and  vessels  colony-owned 
or  built.  Provision  was  made  for  weighing  at  the  King's  beam 
all  exports  of  bread  and  flour,  as  well  as  both  exports  and  imports 
of  the  goods  on  which  duties  were  granted  by  the  act.  Practi- 
cally the  same  machinery  for  collection  was  provided  as  had  pre- 
viously existed,  but  in  addition  importers  were  required  to  give 
to  the  treasurer  copies  of  entries  of  goods  with  the  collector  and 
receiver  general,  and  on  payment  of  the  duties,  the  treasurer 
was  to  issue  a  certificate  of  such  payment,  upon  which  the  col- 
lector was  to  permit  the  landing  of  the  goods.  This  extra  elab- 
oration of  procedure,  necessitated  by  the  obtrusion  of  the  treas- 
erer  into  a  realm  formerly  monopolized  by  the  collector,  was 
later  made  subject  of  complaint.    The  proceeds  of  the  duties  were 


Col.  Doc.  V.  378-80,  416.     Ass.  J.  I.  332.     Council  J.  I.  381. 


150  PHASES    OF    ROYAL    GOVERNMENT 

req^uired  to  be  paid  to  the  treasurer.  Bills  of  credit  to  the  value 
of  £6,000  were  authorized  to  be  issued,  with  the  usual  arrange- 
ments for  redemption.  The  treasurer  was  required  to  pay  out  the 
bills  of  credit,  and  all  sums  accruing  from  the  act  over  and  above 
the  bills  of  credit,  to  such  persons  and  in  such  manner  as  should 
be  directed  by  warrants  passed  in  council  by  the  governor.  The 
v/arrants  w-ere  to  be  numbered  and  paid  in  course  according  to 
number,  and  the  clerk  of  the  council  was  to  signify,  immediately 
after  passing  the  same,  the  warrants,  their  numbers  and  the 
persons  to  whom  they  were  payable.^ 

Without  going  into  a  description  of  the  naturalization  act, 
for  which  this  revenue  act  was  exchanged,  it  may  be  sufficient 
to  remark,  in  Hunter's  words,  that,  if  approved,  it  would  have 
the  efifect  of  uniting  the  minds  of  the  majority  of  the  considerable 
people  of  the  province,  and  that,  if  not  approved,  it  would  do  no 
harm  if  it  lay  for  some  time  without  action.  It  was  one  of  those 
measures  which,  during  the  stormy  years  of  controversy,  the  as- 
sembly had  shown  itself  ''fond"  of ;  and  it  had  passed  through 
all  the  stages  of  legislation  except  the  assent  of  the  governor. 
Thus,  as  the  act  for  payment  of  public  debts  had  prepared  the 
way  for  the  revenue  by  rehabilitating  credit,  so  this  act,  by  con- 
tributing to  the  quieting  of  apprehensions  concerning  the  possi- 
bility of  the  strict  enforcement  of  all  the  legal  consequences  of  the 
anomalous  mixture  of  national  elements  in  the  population,  ac- 
complished its  share  in  "a  lasting  settlement  on  this  hitherto  un- 
settled and  ungovernable  Province."  Hunter  was  evidently 
doubtful  about  the  reception  of  this  act  at  home  and  tried  to 
obtain  the  insertion  of  a  suspending  clause,  but  he  had  to  yield 
on  this  point.  The  opinion  of  the  attorney  general  in  reference 
to  the  act  was  decidedly  dubious,  and  there  is  at  present  no  evi- 
dence that  it  was  either  confirmed  or  disallowed.^ 

There  are  several  noteworthy  features  about  this  revenue 
act  which  bear  testimony  to  its  character  as  a  compromise  settle- 
ment. In  the  first  place,  it  is  to  be  observed  that  the  treasurer, 
not  the  receiver  general,  was  made  the  custodian  of  the  funds 
arising  from  the  act.  This  was  evidently  regarded  as  an  objection 
by  the  governor,  but  he  observed  that,  as  the  bills  of  credit  au- 
thorized by  the  act  were  perforce  lodged  in  the  treasurer's  hands, 

'  Col.  Laws  I.  847. 

'  Col.  Laws  I.  858.     Col.  Doc.  V.  416,  495. 


IN    NEW    YORK,     169I-I719.  I5I 

it  was  necessary  that  the  funds  for  sinking  them  should  be  in  the 
same  custody.  Further,  he  asserted  that  it  was  done  with  the 
consent  of  the  receiver  general  himself,  who  gave  the  casting 
vote  in  the  council  against  amendments  designed  to  defeat  the 
bill.  Thus  one  feature  of  the  assembly's  policy  had  been  gained. 
In  the  method  of  disposition  of  the  funds  compromise  is  equally 
conspicuous.  It  will  be  remembered  that  a  cardinal  feature  of 
objection  to  the  assembly's  bills  for  the  support  of  government 
had  been  the  clauses  making  appropriations  for  the  payment  of 
salaries,  thus  depriving  the  crown  of  its  power  of  rewarding  its 
servants  according  to  its  own  judgment.  The  terms  of  the  act 
provided  merely  for  the  issue  of  the  money  by  the  treasurer,  in 
accordance  with  warrants  from  the  governor  and  council.  On  the 
surface,  then,  the  directions  of  the  instructions  were  technically 
complied  with.  But  in  connection  with  this  act,  (and  here  Hun- 
ter's candor  deserts  him,  for  he  fails  to  mention  this  circumstance 
in  his  official  correspondence)  resolves  were  passed,  appropriating 
salaries  and  regularly  recurring  incidental  expenses  for  support 
of  government.  And  we  have  Hunter's  own  testimony  before  the 
Lords  of  Trade  at  a  later  time,  to  the  fact  that  he  gave  his  word 
that  he  would  issue  the  warrants  in  accordance  with  these  re- 
solves, and  that  he  regularly  did  so  during  the  rest  of  his  admin- 
istration. This  was  a  compromise  in  which,  as  to  essentials  of 
financial  management,  the  assembly  had  certainly  the  weight  of 
advantage.  They  had,  it  is  true,  yielded  the  point  of  annual 
grant ;  but  the  feature  just  described,  together  with  the  precau- 
tionary processes  suggested  by  the  governor  and  finally  adopted, 
would  certainly  overbalance  the  five  year  term  and  the  preser- 
vation of  the  form  of  disposition  by  warrant.^ 

There  is  another  compromise  feature  in  the  act,  which  has 
not  yet  been  mentioned.  It  was  from  the  first  a  theory  with 
Hunter  that  the  system  of  compensation  of  assemblymen  by  the 
counties  which  they  represented  contributed  to  their  obstructive 
attitude.  So  long  as  the  per  diem  allowance  was  regularly  forth- 
coming from  their  counties,  an  attitude  on  legislative  propositions 
which  enabled  them  to  pose  before  their  constituents  as  careful 
husbands  of  the  colony  resources,  and  at  the  same  time  multiplied 
the  necessity  for  sessions  of  many  days,  enabled  the  assembly- 


*Ass.  J.  I.  375.     Col.  Doc.  V.  559. 


152  PHASES    OF    ROYAL    GOVERNMENT 

man  to  make  his  office  more  profitable  than  his  regular  occupa- 
tion. Hunter  had  from  the  first  endeavored  to  get  the  system 
changed,  and  had  succeeded  in  having  the  allowance  for  the 
session  which  passed  the  debt  bill  charged  to  the  funds  appro- 
priated for  the  payment  of  the  debts.  This  was  defended  at 
the  time  on  the  ground  that  the  long  session  had  been  devoted 
almost  exclusively  to  that  subject,  and  that  it  was  equitable 
that  the  funds  from  which  those  who  benefited  by  the  act  were 
to  be  paid  should  bear  the  expense  of  the  session.  He  labored 
to  have  this  allowance  also  changed  to  the  revenue  for  the  whole 
period  for  which  it  was  granted,  believing  that  the  saving  in 
the  local  levies  of  the  constituencies  would  be  approved  there 
and  that  the  arrangement  might  be  made  permanent.  He  failed 
in  this;  but  succeeded  in  having  the  arrangement  tried  for  one 
year,  and  as  a  matter  of  fact,  this  was  the  method  followed 
thereafter  in  the  compensation  of  members  of  the  assembly.^ 

Still  another  compromise  feature  appears  in  the  settlement 
of  the  dispute  over  the  matter  of  an  agency,  which  had  been  run- 
ning for  nearly  as  long  as  the  revenue  controversy.  It  will  be 
remembered  that  the  assembly's  bills  had  provided  for  an  exclu- 
sive control  by  that  body  of  the  appointment,  instruction  and  sup- 
port of  an  agent.  At  the  session  which  granted  the  revenue,  an 
act  was  passed,  appointing  John  Champante,  a  person  much  ap- 
proved by  the  governor,  as  agent,  providing  for  his  instruction 
either  by  the  governor  and  council  or  by  the  assemblv.  and  direct- 
ing the  treasurer  to  pay  the  agent  five  hundred  ounces  of  plate 
on  the  order  of  the  assembly,  signed  by  the  speaker.^ 

Enough  has  been  said  to  show  how  extensive  were  the  ramifi- 
cations of  the  settlement  of  the  dispute  between  the  prerogative 
and  popular  bodies,  of  which  the  matter  of  the  revenue  was  the 
nucleus.  As  a  method  of  support  of  government,  this  settlement 
proved  to  be  comparatively  permanent  in  its  nature.  After  a 
grant  for  one  year,  in  1720,  the  revenue  was  continued  with  cer- 
tain modifications,  for  successive  periods  of  three  or  five  years 
till  1737,  when  a  new  contest  over  annual  appropriating  acts  arose 
under  a  different  set  of  conditions. 

In  a  review  of  the  financial  methods  of  the  province  the  pro- 
gress and  development  of  the  power  of  the  assembly  over  ex- 

'Col.  Doc.  V.  180,  404,  416. 

'Col.  Laws  I.  881.    Col.  Doc.  V.  420. 


IN    NEW    YORK,    169I-I719.  I53. 

penditure,  as  well  as  provision,  of  public  income,  is  marked.  Be- 
ginning with  a  condition  of  affairs  in  which  even  a  knowledge  of 
the  disposition  of  funds  voted  for  extraordinary  uses  was  prac- 
tically unattainable,  the  assembly  used  its  power  of  the  purse  as 
a  weapon  to  induce  the  avoidance  by  the  expending  body  of  a  just 
suspicion  of  misuse.  Then,  on  the  findings  of  its  committee  of 
accounts,  it  proceeded  to  establish  control  over  funds  for  extra- 
ordinary uses  by  providing  for  the  separate  custody  and  disposi- 
tion of  such  funds  by  its  own  agent,  the  colony  treasurer.  As  we 
have  seen,  this  was  not  attained  without  a  struggle.  Becoming 
further  convinced  of  the  inadequacy  of  the  system  of  expenditure 
of  funds  for  the  support  of  government  by  the  experience  under 
Cornbury,  at  the  earliest  practicable  moment  it  attempted  reform 
by  a  project  far  too  radical  in  its  form  to  be  practicable  under 
any  conscientious  royal  governor.  By  aiming  so  high,  and  by 
stubborn  persistence  in  denial  of  supply  in  the  face  of  threats  of 
parliamentary  interference,  it  was  enabled,  in  the  resulting  com- 
promise to  attain  an  arrangement  which  secured  to  it  substantial 
control  of  the  main  items  of  governmental  support  which  it  rec- 
ognized as  regular  and  necessary.  In  view  of  the  original  cir- 
cumstances of  New  York  as  a  conquered  province,  proceeding 
under  the  Revolution  settlement  on  the  theory  that  "England, 
having  granted  ...  a  representative  Assembly  was  bound 
to  abide  by  the  logic  of  that  grant  as  .  .  .  illustrated  and 
enforced  in  the  history  of  her  own  Commons,"  this  constitutes 
certainly  a  remarkable  achievement.^ 

The  controversy  over  the  method  of  support  of  government 
and  the  character  of  its  settlement  as  just  related,  constitute 
from  the  purely  financial  aspect  an  important  feature  of  provin- 
cial development.  Any  account  of  this  development,  however, 
would  be  incomplete  without  at  least  a  hint  as  to  the  general  effect 
of  the  struggle  upon  the  balance  of  political  forces  in  the  con- 
stitution of  the  province.  Reference  has  already  been  made  to 
the  share  in  the  settlement  of  the  revenue  matter  contributed  by 
Hunter's  personal  popularity,  aided  by  the  skill  of  Morris  as 
legislative  manager  in  working  up  a  "Governor's  interest"  in  the 
assembly.  The  passage  of  the  revenue  act,  even  under  the  hard 
conditions  referred  to,  is  the  best  evidence  as  to  the  substantial 


S.  N.  D.  North  in  Mag.  Am.  Hist.  III.  161. 


154  PHASES    OF    ROYAL    GOVERNMENT 

character  of  this  "interest."  We  have  also  noticed  how  widely 
extended  were  the  elements  of  compromise  associated  with  the 
passage  of  this  act.  From  that  time  Hunter's  chief  policy  seems 
to  have  been  directed  to  the  task  of  defending  at  home  the  meas- 
ures already  accomplished,  and  equally  to  the  perfection  of  the 
working  relation  between  himself  and  the  assembly,  already  so 
fruitful,  for  the  purpose  of  preserving  what  had  been  gained.  In 
the  former  purpose  he  was  finally  successful  against  the  efforts  of 
a  determined  opposition,  in  having  all  the  main  features  of  the 
settlement  either  actually  confirmed  or  laid  on  the  table.  This 
opposition  drew  strength  both  from  provincial  and  from  English 
sources,  was  so  formidable  as  to  give  the  governor  great  anxiety, 
and  finally  formed  one  of  the  strong  reasons  for  his  return  to 
England  in  1719.^  In  order  to  the  continuation  of  the  work  begun 
by  the  revenue  act,  a  number  of  things  remained  to  be  done. 
There  were  still  outstanding  many  claims  against  the  government, 
of  equal  justice  with  those  already  satisfied,  and  the  quieting  and 
settling  work  must  be  completed  by  attention  to  them.  The  rev- 
enue act  left  unprovided  for,  a  number  of  items  not  likely  to  ap- 
pear regularly  in  the  provincial  budget,  such  as  repairs  made 
necessary  by  the  long  denial  of  supply,  expenses  of  running  a 
boundary  line,  compensation  for  slaves  executed  at  the  time  of  the 
negro  plot.  For  these,  as  well  as  other  purposes,  a  more  numer- 
ous, as  well  as  more  reliable,  majority  in  the  assembly  was  re- 
quired, if  the  governor  was  to  be  able  to  carry  out  his  policy. 
Accordingly  we  find  Hunter  availing  himself  of  the  arrival  of  his 
new  commission  as  an  excuse  for  a  dissolution  and  the  summons 
of  a  new  assembly.  In  the  elections,  his  "interest"  must  have  been 
perniciously  active,  for  he  later  took  pride  in  his  success  in  hav- 
ing had  "the  luck  or  art  to  get  the  better"  of  his  opponents,  par- 
ticularly in  New  York  City,  which  returned  an  entirely  new  dele- 
gation. Several  changes  occurred  in  the  rural  delegations,  and 
the  number  of  the  house  was  increased  by  the  addition  of  one 
new  constituency  —  the  Manor  of  Livingston,  —  and  by  an  addi- 
tional member  from  Orange  County.  This  brought  the  total 
number  to  twenty-six,  and  established  an  equality  of  representa- 
tion from  the  counties,  except  in  the  case  of  New  York  and  Al- 
bany.   It  is  not  without  significance  that  this  very  rapid  increase 


Col.  Doc.  V.  493-4,  512,  514-5,  521-6. 


IN    NEW    YORK,     169I-I719.  I55 

of  total  membership  from  twenty-two  to  twenty-six  was  made 
entirely  in  the  time  of  Hunters  administration.^.  It  is  presum- 
ably at  this  time,  too,  that  the  custom  developed  of  making  the 
governor's  use  of  his  patronage  in  the  counties  a  matter  of  bar- 
gain with  the  assemblymen  representing  the  counties,  which 
Burnet,  Clarke,  and  Morris  later  refer  to  as  fully  established.^ 

In  this  reciprocal  relation  as  to  county  patronage  and  good 
behavior  during  the  sessions,  as  well  as  in  the  mutual  benefits 
derivable  from  the  barter  of  grants  of  revenue  for  favorite  meas- 
ures of  doubtful  reception  at  home,  is  to  be  found  the  basis  of 
the  ''System"  of  political  relations  which  obtained  for  the  next 
twenty  years.  Its  immediate  fruit  is  to  be  found  in  a  second  bill 
for  the  payment  of  debts,  which,  including  many  items  of  necessity 
for  the  welfare  of  the  government  as  well  as  for  payment  of  purely 
Leislerian  claims,  was  deemed  by  Hunter  to  be  an  essential  part  of 
the  settlement  already  partially  realized.  But  the  main  purpose 
of  the  "System"  was  the  assurance  thereby  afforded  to  the  gov- 
ernor of  a  continued  support  of  government,  a  question,  which, 
if  unsettled,  made  orderly  development  of  any  policy  impossible. 
The  price  paid  for  this  assurance  was  seriously  formidable.  The 
"System"  not  only  involved  the  "undue"  influence  of  the  governor 
over  the  composition  of  the  assembly,  and  the  elections  to  it, 
as  well  as  the  patronage  relations  already  referred  to.  It  involved 
also  the  placation  of  important  family  "interests,"  like  those  of 
Livingston  and  Morris,  by  gifts  of  office.  It  involved  the  con- 
tinuation of  the  assembly  elected  in  1716  over  a  period  of  more 
than  ten  years ;  this  circumstance,  though  mitigated  by  numerous 
bye-elections,  finally  attaining  serious  proportions  as  a  popular 
grievance.  The  preservation  of  the  life  of  this  assembly  v/as 
considered  so  important  for  government  purposes  that  the  aliena- 
tion of  the  Schuyler  "interest"  was  not  considered  too  high  a 
price  to  pay  for  its  attainment.  All  this  concentration  upon  the 
relation  between  the  governor  and  the  assembly  had  the  inevita- 
ble effect  of  reducing  the  council  to  a  position  of  comparative 
insignificance ;  and  it  is  not  until  the  practice  of  the  governor's 
presiding  over,  and  sometimes  voting  in,  the  council  is  broken 


'Council  J.   I.  396.     Ass.  J.  I.  381,  395.     Col.  Doc.'V.  514-5. 
'  Col.  Doc.  V.  764,  768-771. 


156  PHASES    OF    ROYAL    GOVERNMENT 

Up,  that  anything  like  the  old  balance  of  elements  in  the  Consti- 
tution was  restored.^ 

Enough  has  perhaps  been  said  to  indicate  how  important 
were  the  possibilities  for  provincial  development  contained  in  the 
system  of  relations  between  the  executive  and  legislature  to 
which  the  revenue  controversy  actually  led  up.  The  workings  of 
the  "System"  were  complex  and  elaborate  and  make  up  a  story 
by  themselves.  These  operations  are  significant  not  merely  as 
making  up  a  structure  of  political  relations  in  the  province,  based 
on  a  self-conscious  movement  for  something  more  than  a  partisan 
or  factional  end.  They  constitute  as  well  the  perspective  of  the 
struggle  for  the  general  advance  in  provincial  autonomy  carried 
on  under  Clarke. 

BIBLIOGRAPHICAL   NOTE. 

In  preparing  the  foregoing,  the  original  sources  have  throughout  been 
exclusively  consulted.     Of  these  sources  the  following  is  a  list. 

Colonial  Manuscripts.  In  the  State  Library,  Albany,  N.  Y.  Re- 
ferred to  as  Col.  Mss. 

Council  Minutes  (Executive).  State  Library.  Referred  to  as  E. 
C.  M. 

Journal  of  the  Legislative  Council.  O'Callaghan,  Editor.  Published 
Albany,  1861.     Referred  to  as  J.  of  L.  C 

Journal  of  the  General  Assembly.  Abraham  Lott,  Jr.,  Editor.  Pub- 
lished  New   York,   1764.     Referred  to   as   Ass.   J. 

Colonial  Laws.  Commissioners  of  Statutory  Revision.  Published 
Albany,  1896. 

Documents  relating  to  the  Colonial  History  of  the  State  of  New 
York.  O'Callaghan,  Editor.  Published  Albany,  1854.  Referred  to  as 
Col.  Doc. 

Documentary  History  of  the  State  of  New  York.  O'Callaghan,  Ed- 
itor.    Published  Albany,   1849.     Referred  to  as  Doc.  Hist. 

Calendar  of  Treasury   Papers.     London. 

The  New  York  State  Library  has  produced  an  excellent  bibliography 
of  New  York  Colonial  History,  under  that  title,  as  Bulletin  56,  February, 
1901,  by  Charles  A.  Flagg  and  Judson  T.  Jennings. 


'  Col.  Doc.  V.  577-9,  580,  585,  805,  882-8. 


VITA. 

The  author  was  prepared  for  college  at  the  Coburn  Classical  In- 
stitute, Waterville,  Maine;  received  the  degree  of  Bachelor 
of  Arts  from  Colby  College  in  1890;  from  1892  to  1894  was 
Honorary  Fellow  in  Social  Science  at  the  University  of 
Chicago;  and  was  a  student  in  the  School  of  Political  Sci- 
ence, Columbia  University,  during  the  academic  year,  1894- 
1895.  At  the  end  of  that  year  he  received  an  appointment 
to  a  Town^shend  Scholarship  at  Harvard  University,  which 
he  resigned  in  order  to  take  the  chair  of  History  at  Colgate 
University.  While  on  leave  of  absence  from  that  institu- 
tion in  the  academic  year,  1 900-1 901,  he  was  University 
Fellow  in  American  History  at  Columbia  University.  He 
is  at  present  Professor  of  History  at  Colgate  University. 


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